Madras High Court
G.Parameswari vs Seethalakshmi on 9 June, 2023
A.S.No.790 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE C. KUMARAPPAN
A.S.No.790 of 2012
and
M.P.No.1 of 2012
G.Parameswari ... Appellant
Vs.
1.Seethalakshmi
2.S.Gowthaman ... Respondents
[R2 was exonerated in the lower Court and
hence given up]
Prayer : Appeal Suit filed under Section 96 r/w. Order 41 Rule 1 of Code of
Civil Procedure against the judgment and decree dated 23.04.2012 in
O.S.No.28 of 2010 on the file of the District Court, Nagapattinam.
For Appellant : Mr.A.Prabhakaran
For R1 : No appearance
R2 : Given up
Page 1 of 11
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A.S.No.790 of 2012
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
The appeal is directed against the judgment and decree, dated
23.04.2012, in O.S.No.28 of 2010 on the file of the District Court,
Nagapattinam. The 1st defendant in the suit is the appellant in the above
appeal.
2.The 1st respondent as plaintiff filed the suit in O.S.No.28 of 2010 on
the file of the District Court, Nagapattinam, for partition of her one half
share in all the suit properties and for consequential reliefs. The suit is also
for accounting and for future mesne profits. The suit properties are
described as Item Nos.1 to 35 comprised in various Survey Numbers in
North Poigainallur and South Poigainallur Villages, Nagpattinam Taluk,
Nagapattinam District.
3.The case of the plaintiff is that, all the suit properties are the
ancestral properties of father of plaintiff and 1 st defendant, namely,
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A.S.No.790 of 2012
Arunachala Gounder, and the properties purchased by him out of the income
from joint family properties. It is admitted that Arunachala Gounder died on
10.11.1994. The mother of plaintiff/wife of Arunachala Gounder, namely
Vedavalli Ammal, died on 21.07.2004. It is the specific case of the 1st
respondent/plaintiff that Arunachala Gounder had two other sons, by name
Kumarasamy and Chelladurai, and that both of them died unmarried. It is
also contended by the plaintiff that both Arunachala Gounder and Vedavalli
Ammal died intestate and therefore, the plaintiff is entitled to one half share
in all the properties left by father Arunachala Gounder. The plaintiff has
also stated about the sharing of income and alleged that 1 st defendant did not
share the entire income. Stating that joint possession is not feasible, the
plaintiff came forward with the suit for partition.
4.The suit was contested by the appellant/1st defendant by a detailed
written statement. It is the specific case of appellant that father Arunachala
Gounder executed a registered Will dated 07.07.1993 and that on the same
day, the appellant's mother Vedavalli Ammal also executed another
registered Will dated 07.07.1993 in favour of their son Selva Kumarasamy.
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A.S.No.790 of 2012
It is the further case of appellant that Selva Kumarasamy executed an
unregistered Will dated 15.03.2005 in favour of the appellant. Therefore,
the suit was contested by the appellant solely on the ground that, by virtue of
the registered Wills dated 07.07.1993 (marked as Exs.B2 and B3) in favour
of Selva Kumarasamy and the unregistered Will executed by Selva
Kumarasamy dated 15.03.2005 (marked as Ex.B4) in favour of appellant,
the appellant got absolute right over the suit properties.
5.The 2nd defendant is only a tenant and no written statement was filed
by the 2nd defendant. Since no relief was claimed against the 2nd defendant,
the trial Court exonerated him, as seen from the judgment.
6.The trial Court framed the following issues :
i. Whether the plaintiff is entitled for partition as prayed for ?
ii. Whether the suit is bad for non-joinder of necessary parties ?
iii. Whether the Arunachala Gounder left any Will dated
07.07.1993 ?
iv. Whether the Vedhavalli left any Will, dated 07.07.1993 ?
v. Whether the Selva Kumarasamy has left any Will, dated
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A.S.No.790 of 2012
15.03.2005 ?
vi. Whether the plaintiff is entitled for accounts and mesne profits
?
vii.To what relief ?
7.The plaintiff examined herself as P.W.1 and examined P.W.2 and
P.W.3. On the side of plaintiffs, Exs.A1 to A12 were marked. The
defendant examined herself as D.W.1 and also examined D.W.2 to D.W.7.
Exs.B1 to B7 were marked on the side of defendants.
8.The appellant (D.W.1), in the course of evidence, admitted that one
of the sons by name Selva Kumarasamy was married, however, it is stated
that the marriage was dissolved and his wife got separated. It is also in
evidence that the wife of Selva Kumarasamy contracted second marriage.
D.W.2 and D.W.5 were examined to prove the execution of Will under
Ex.B2. Finding that there are vital discrepancies in the evidence of D.W.2
and D.W.5, the trial Court specifically found that the Will under Ex.B2 is not
proved. Similarly, the Will under Ex.B3, which is also attested by D.W.2
and D.W.5, was considered by the trial Court and the trial Court found that
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A.S.No.790 of 2012
the appellant has not satisfied the requirements of Section 63(c) of Indian
Succession Act, 1925, as well. The trial Court also held that the attestation
was not proved in the manner required under Section 63 of the Indian
Succession Act and that the suspicious circumstances surrounding the Will
were also not dispelled by the appellant. As regards the Will alleged to have
been executed by Selva Kumarasamy, one of the brothers of plaintiff and 1st
defendant, in favour of 1st defendant's son under Ex.B4, the trial Court held
that the unregistered Will stated to have been attested by D.W.3 and D.W.4,
is not proved. The glaring discrepancies between the evidence of D.W.3 and
D.W.4 were highlighted by the trial Court. One of the witnesses D.W.3 has
stated that Selva Kumarasamy signed the Will in Tamil, whereas, the
document Ex.B4 shows that the Will was signed by Selva Kumarasamy in
English. The presence of the other witness was also held doubtful by the
trial Court having regard to the evidence of D.W.3. The evidence of D.W.4
was also considered by the trial Court to hold that his evidence is not
believable for reasons. The trial Court held that the Wills propounded by the
1st defendant/appellant were not proved. A specific finding is rendered that
Ex.B4-Will was created. In the absence of Wills, the trial Court held that
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A.S.No.790 of 2012
plaintiff is entitled to one half share in all the properties and that the
consequential reliefs are also to be granted in favour of plaintiff, the sister of
appellant and daughter of Arunachala Gounder, and ultimately, decreed the
suit.
9.Aggrieved by the judgment and decree of the trial Court, the 1st
defendant has preferred the above appeal.
10.Learned counsel appearing for the appellant/1st defendant, who
vehemently argued that the trial Court has not considered the evidence in
entirety in a proper perspective, is unable to demonstrate how the findings of
the trial Court are perverse or not supported by evidence. This Court
carefully considered the evidence of D.W.2 to D.W.5 and convinced that the
discrepancies are glaring and the counsel for appellant himself accepts that
he has no explanation to be offered. All the Wills show unnatural
disposition. The appellant has miserably failed to dispel the suspicious
circumstances.
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A.S.No.790 of 2012
11.This Court, having gone through the findings of the trial Court,
finds that the trial Court has applied its mind on all the issues by considering
the evidence in a proper manner. This Court is unable to find any perversity
or non-application of mind. In the absence of compelling reasons for this
Court to interfere with the findings of the trial Court, this Court is unable to
interfere with the judgment and decree of the trial Court.
12.It is admitted that the appellant has no other defence except the
Wills under Exs.B2 to B4. It is seen that Exs.B2 and B3 are only
photocopies of registered Wills. There is no explanation to the satisfaction
of the Court why the appellant has not produced the originals of Exs.B2 and
B3. Though certified photocopy of original Wills are produced under
Exs.B5 and B6, the reason for non-production of original is nowhere
explained in the evidence. The evidence of attesting witnesses are not
reliable in view of the glaring contradictions and discrepancies pointed out
by the trial Court. It cannot be disputed that the Will under Exs.B2 to B4
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A.S.No.790 of 2012
are unnatural. Absolutely, there is no reason why father and mother should
exclude the two daughters. The appellant has not even dispelled the
surrounding suspicious circumstances.
13.The other point that was urged by the appellant before the trial
Court is that the suit has been filed long after the death of father and
therefore, the plaintiff has admitted the title of appellant on the basis of Wills
under Exs.B2 to B4. This Court finds a specific pleading in the plaint that
the father and mother died intestate. The plaintiff has also stated about
sharing of income in respect of some of the immovable properties. The
plaintiff examined herself as P.W.1. P.W.2 and P.W.3 were also examined to
show that plaintiff was also in joint possession. Appellant is the elder sister
of plaintiff. Merely because she has produced some Wills, it cannot be
presumed that she is in exclusive possession of all the properties in hostility.
This Court is unable to find a specific pleading of ouster in the entire written
statement. In such circumstances, merely because the suit is filed with a
delay, this Court is unable to find any merit in the contention of the
appellant that she has prescribed title by ouster. For want of pleading and
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A.S.No.790 of 2012
proof, this Court is unable to countenance the arguments of learned counsel
for the appellant on the issue of ouster.
14.As a result, this Court finds no merit in this appeal. Accordingly,
this appeal is dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
(S.S.S.R., J.) (C.K., J.)
09.06.2023
mkn
Internet : Yes
Index : Yes / No
To
1.The District Judge,
Nagapattinam.
2.The Section Officer, | with a direction to return
VR Section, High Court, | the records to the Court below,
Chennai. | if any, forthwith
https://www.mhc.tn.gov.in/judis
A.S.No.790 of 2012
S.S. SUNDAR, J.
and
C.KUMARAPPAN, J.
mkn
A.S.No.790 of 2012
09.06.2023
https://www.mhc.tn.gov.in/judis
