Madras High Court
Jansirani vs L.Sugumaran on 29 March, 2023
S.A.No.1105 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29..03..2023
Coram
THE HON'BLE MR JUSTICE V. LAKSHMINARAYANAN
Second Appeal No.1105 of 2009
and
C.M.P.No.1 of 2009
1. Jansirani
2. Jakkuvin Rani
..... Appellants
-Versus-
1. L.Sugumaran
2. L.Chinnaiyan
..... Respondents
Appeal filed under Section 100 of C.P.C. against the judgment and
decree dated 17.04.2019 made in A.S.No.10 of 2007 by the learned Principal
Subordinate Judge, Tiruvannamalai, confirming the judgement and decree
dated 19.12.2006 made in O.S.No.408 of 2005 by the learned Additional
District Munsif, Tiruvannamalai.
For Appellants : Ms.Mahamandra Rajalakshmi
For Respondents : Mr.K.Selvakumar for
Mr.T.R.Rajaraman for R1
No Appearance for R2
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JUDGEMENT
This Second Appeal arises against the judgement and decree dated
17.04.2019 made in A.S.No.10 of 2007 by the learned Principal Subordinate
Judge, Tiruvannamalai, in confirming the judgement and decree dated
19.12.2006 made in O.S.No.408 of 2005 by the learned Additional District
Munsif, Tiruvannamalai.
2. The case of the plaintiffs is that, their mother Soundari and
Dhaneswari Ammal were sisters. Their grandfather Appendai Nainar had
purchased a property in the name of Dhaneswari Ammal on 23.02.1985.
Dhaneswari Ammal was a patient suffering from Asthma and heart ailments.
She passed away on 01.01.1994. Dhaneswari Ammal had married the 1st
defendant Sugumaran and through the wedlock, they had no issues. According
to the plaintiffs , on 18.12.1993, Dhaneswari Ammal executed a Will in favour
of the plaintiffs viz., (1) Jansirani and (2) Jakkuvin Rani. As the husband of
Dhaneswari Ammal, the 1st defendant herein, sought to interfere with the
possession, the present suit for declaration of title and injunction.
3. In the written statement the respondents contended that the 1st
defendant had purchased the property in the name of Dhaneswari Ammal and it
was not purchased by his father-in-law Appendai Nainar. The defendants have
specifically pleaded that the alleged Will dated 18.12.1993 is a rank forgery.
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4. Based on the above pleadings, the trial court framed the following
issues:-
(1) whether it is true that the father of
Dhaneswari Ammal had purchased the suit
property on 23.02.1985 in the name of
Dhaneswari Ammal to gift as Sreedhana property?
(2) Whether it is true that Dhaneswari
Ammal had executed the will on 18.12.1993 in
respect of the suit property in favour of the
plaintiff in a sound disposing state of mind?
(3) Whether the suit property is in
possession and enjoyment of the plaintiffs?
(4) Whether the plaintiff is entitled to the
relief of declaration as prayed for in the suit?
(5) Whether the plaintiff is entitled to the
relief of permanent injunction as prayed for in the
suit?
(6) To what other reliefs, the plaintiff is
entitled?
5. On the side of the plaintiff 3 witnesses were examined viz., Jansirani,
the 1st plaintiff as P.W.1, Jayaramapillai, the alleged scribe of the Will as P.W.2
and Thulasi Gounder, the attesting witnesses to the Will as P.W.3 and 7
documents were marked. On the side of the defendants, L.Sugumaran, the 1st
defendant examined himself as D.W.1 and marked 14 documents.
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6. After a detailed consideration, the trial court dismissed the suit against
which an Appeal Suit in A.S.No.10 of 2007 had been preferred before the
Principal Subordinate Judge, Tiruvannamalai, and the Appeal Suit, as stated
above, was dismissed confirming the decree and judgement of the trial court.
Both the courts below have found that Dhaneswari Ammal is the owner of the
property and it was not purchased by Appendai Nainar or by Sukumaran, the 1 st
defendant. Therefore, I need not venture into the plea of benami raised by the
1st defendant Sugumaran. The 1st defendant Sugumaran has not filed any cross
objection as against the adverse finding made against him and therefore, he is
debarred from arguing to the contrary in this appeal.
7. Insofar as the WILL dated 18.12.1993 is concerned, the same was
marked as Ex.P.2. The onus of proving the Will and the absence of the
suspicious circumstances is on the plaintiffs. They are the propounders of the
Will. This is especially so in this case since the specific case of the 1st
defendant is that the Will is fabricated and a forged one. One of the suspicious
circumstances in the Will is lack of the reason for excluding Sugumaran with
whom Dhaneswari Ammal was residing from the time of her marriage in 1976
till her death in 1994. Exclusion of a legal heir is a suspicious circumstance.
P.W.3 the attesting witnesses to the Will as well as P.W.2, the Scribe of the
Will are not in a position to state whether the the marital relationship between
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the plaintiffs' aunt and uncle were on the rocks. Apart from this , no other
evidence has been let in by the parties.
8. Further, signatures of the testator has to be proved in a convincing
manner. The trial court as well as the first appellate court have compared the
signatures in the Will (Ex.A2) and the admitted evidence in the form of
correspondence under Ex.A.5, A6 & A8. They have come to a conclusion that
the signatures were not similar with the signatures found in Ex.A.2 Will.
9. The plaint as well as the evidence of parties proceed that Dhaneswari
Ammal was not in the pink of her health but was literally taken from one
hospital to another for treatment. Therefore, a duty cast on them to show that it
was Dhaneswari Ammal who had written the Will. The Signature of
Dhaneswari Ammal found in a contemporaneous document of 10.05.1992 and
under Ex.A.5 which have been produced by the plaintiffs in the cross
examination of the 1st defendant do not tally.
10. The further finding has been shown that Ex.A.1 is the certified copy
of the sale deed and the stamp papers were purchased in Gudiyatham on
24.11.1993.The copy application itself was presented on 22.12.1993 and the
copy was obtained on 27.12.1993. Whereas the Will had been executed much
before the copy application was presented to the Sub Registrar on 18.12.1993.
In other words, on the date of execution of the alleged Will (Ex.A2), copy of
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the Sale Deed (Ex.A.1) was not even in existence. This is an other burden on
the plaintiff which has not been satisfactorily discharged.
11. Both the courts below have compared the signature with the admitted
signature found in the other documents and have come to a conclusion that
Ex.A2 Will is forged one and that the plaintiffs have not explained the
suspicious circumstances surrounding Ex.A.2 Will. These are findings of fact
which have been endorsed by the first appellate court which is final court of
appeal on facts. This second appeal has not been admitted. I am not inclined to
admit it. No question of law, much less substantial question of law, arises for
consideration in this second appeal and as such this second appeal is liable to
be dismissed.
In the result, the Second Appeal is dismissed and the judgement and
decree of both the courts below are confirmed. No costs. Consequently,
connected miscellaneous petition is closed.
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Index : yes / no
Neutral Citation : yes / no
Speaking / Non Speaking Order
kmk
To
1.The Principal Subordinate Judge, Tiruvannamalai, Tiruvannamal District.
2.The Additional District Munsif, Tiruvannamalai, Tiruvannamalai District.
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V.LAKSHMINARAYANAN, J.
kmk
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