Madras High Court
Kannusamy Thevar vs Rajathi on 23 November, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A.(MD) No.653 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
S.A.(MD) No.653 of 2023
and
C.M.P.(MD) No.15313 of 2023
1.Kannusamy Thevar
2.Sathyaraj
3.Mahalakshmi
4.Rajalakshmi
5.Deivanayaki
6.Janaki
7.Jothi Basu ..Appellants
Vs.
1.Rajathi
2.Soundranayagi
3.Vellaiammal
4.Kupputhai ...Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., to set aside the
judgment and decree dated 11.11.2020 made in A.S.No.20 of 2010 on the file of
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1/10
S.A.(MD) No.653 of 2023
the Additional District Judge, Dindigul, reversing the judgment and decree dated
23.02.2010 made in O.S.No.240 of 2008 on the file of the Subordinate Judge,
Palani.
For Appellants : Mr.Raguvaran Gopalan
For R1 : Mr.S.Meenakshi Sundaram formulated
Mr.M.Senguvijay
JUDGMENT
This second appeal is filed challenging the judgment in A.S.No.20 of
2010 on the file of the learned Additional District Judge, Dindigul in O.S.No. 240
of 2008 on the file of the learned Subordinate Judge, Palani.
2.The appellants are the defendants 3 to 9 in the suit. The respondents 1
and 2/plaintiffs filed the suit against the appellants/defendants 3 to 9 and the
respondents 3 and 4/defendants 1 and 2 seeking the relief of partition of 1/3rd
share in the suit properties. The case of the plaintiffs, in brief, is as follows:
3.The suit properties ancestrally belonged to one Sinnakaruppanna
Thevar. Sinnkaruppanna Thevar died 30 years back and his wife, Karuppayammal
died 25 years back. After the death of Sinnakaruppanna Thevar and
Karuppayammal, their children, Duraisamy Thevar, Solai Thevar and
Kannuchamy Thevar, had been enjoying the suit properties keeping them in joint
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enjoyment. From 2001, Duraisamy Thevar had been taking treatment for Cancer.
He died on 14.10.2002 leaving the plaintiffs as his legal heirs. The plaintiffs are
entitled for 1/3rd share in the suit properties as legal heirs of the deceased
Duraisamy Thevar.
4.Solai Thevar had predeceased Duraisamy Thevar leaving his wife and
daughters, namely the defendants 1 and 2 as his legal heirs. The fourth defendant
is the wife of the deceased son of the third defendant, Sethuramalingam.
Sethuramalingam was dead. The defendants 5 to 7 are the children of
Sethuramalingam. The defendants 8 and 9 are the children of the third defendant.
The defendants 3 to 9 are entitled to 1/3rd share in the suit properties. When
Duraisamy Thevar was suffering from illness, a Will dated 27.08.2002 had been
fabricated. In the Will, the plaintiffs' signatures were forged. The Will dated
27.08.2002 is not a true and genuine Will and this Will had been created by the
third defendant, late.Sethuramalingam, and the defendants 8 and 9. The
defendants 3 to 9 were trying to usurp the property of the plaintiffs. In the said
circumstances, the suit for partition was filed.
5.In the written statement filed by the 9th defendant, the relationship
between the parties is admitted. It is claimed that after the death of
Sinnakaruppanna Thevar, his sons had partitioned the properties. Accordingly,
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necessary mutation had taken place in the revenue records. The defendants 1 and 2
were enjoying the properties allotted to Solai Thevar. After the death of
Duraisamy Thevar's wife, he was under the care and custody of his brother,
Kannuchamy Thevar and his legal heirs. They had alone provided him necessary
food, shelter and medical facilities. Even when Duraisamy Thevar was alive, the
plaintiffs were given sridhanas. Duraisamy Thevar had executed a Will in favour
of his brother's children, Sethuramalingam and Jothibashu in 2002 in respect of
his properties, except the properties allotted to the plaintiffs, namely a house and
10 cents of land. Thus, in terms of the Will, necessary mutation had taken place in
the revenue records and the properties are enjoyed by the defendants 3 to 9.
6.On the basis of the oral and documentary evidence, the learned trial
Judge had dismissed the suit upholding the Will. In the appeal filed in AS.No.20
of 2010, the first appellate Court reversed the findings of the trial Court and
decreed the suit for partition. Against the judgment, S.A.(MD) No.247 of 2015
was filed by the defendants. The appellate Court granted the decree for partition
among other grounds, on the ground that original Will was not produced. In S.A.
(MD) No.247 of 2015, the original Will had been produced. This Court, vide
judgment dated 11.02.2020, remanded the matter to the appellate Court to
consider the first appeal on merits and render its findings on the issue that arises
for consideration in the appeal. The appeal was again restored in A.S.No.20 of
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2010. After hearing the parties, the learned appellate Judge had again found that
the Will was not proved in the manner known to law for the reason that the Will is
clouded by suspicious circumstances and that the execution is not proved. In this
view of the matter, the first appellate Court set aside the judgment of the trial
Court and decreed the suit for partition as prayed for. Now, this second appeal is
filed challenging the judgment of the first appellate Court.
7.The learned counsel appearing for the appellant submitted that the
Will is a registered one and the execution of the Will was properly proved by one
of the attestors, namely the third defendant. The third defendant is not a
beneficiary under the Will. Another attestor to the Will is the second plaintiff.
Therefore, there is no doubt with regard to the genuineness of the Will. It is
clearly recited in the Will that the testator had made all the necessary provisions
for his daughters and they are sufficiently provided. Therefore, they were not
given any properties. The testator had executed a Will in favour of his brother's
sons for the reason that he has no male children and he is part of them and they
were taking care of him during his ailment.
8.The learned counsel for the respondents 1 and 2/plaintiffs submitted
that the Will is an unnatural Will in the sense that the direct legal heirs of the
testator had been excluded for no reason. That apart, the Will was not proved in
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the manner known to law for the reason that the second plaintiff, who is said to be
one of the attestors, had fiercely denied the attestation of the Will. The other
attesting witness, namely the third defendant, is an interested witness. In the said
circumstances, he prayed for confirmation of the judgment of the fist appellate
Court and dismissal of this appeal.
9.Considered the rival submissions and perused the records.
10.The main issue in this case is whether the Will alleged to have been
executed by Duraisamy Thevar in favour of Sethuramalingam and Jothibashu is
true and valid? During the trial before the trial Court, the copy of the Will was
produced as Ex.B1. On the side of the defendants, the third defendant,
Kannuchamy Thevar, was examined as D.W1. The first plaintiff was examined as
P.W1. It is not in dispute between the parties that the suit properties are the joint
family properties of Sinnakaruppanna Thevar and after him, among his sons,
Duraisamy Thevar, Solai Thevar and Kannuchamy Thevar. It is also not in dispute
that these three are entitled to 1/3rd share in the suit properties. It is now claimed
that Duraisamy Thevar had executed a Will in favour of Sethuramalingam and
Jothibashu in respect of his 1/3rd share and therefore, the plaintiffs cannot claim
share. The trial Court had accepted this case and dismissed the suit.
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11.As already stated, the first appellate Court reversed the findings of
the trial Court and decreed the suit holding that the Will projected by the
defendants had not been proved. In the second appeal, the original Will was
sought to be produced and therefore, the matter was remanded back to the first
appellate Court. The first appellate Court, on remand, had again considered the
Will and reiterated its earlier finding that the Will was not proved.
12.As already stated, it is not in dispute that the suit properties are the
ancestral joint family properties and the plaintiffs as legal heirs of Duraisamy
Thevar are entitled for share in the suit properties. Therefore, the Will alleged to
have been executed by Duraisamy Thevar including the share of the plaintiffs is
obviously not valid in law. That apart, it is seen from the findings recorded by the
first appellate Court that though it is claimed that the plaintiffs had also attested
the Will, P.W1, who was examined on the side of the plaintiffs, had stoutly denied
the attestation in the Will. It appears that no efforts had been taken by the
defendants to prove the signature in the Will by scientific method.
13.It is seen from the evidence of D.W1 that the deceased Duraisamy
Thevar was suffering from Cancer and that despite treatment, he died of the
illness. It is also not disputed that there was no ill-will between Duraisamy Thevar
and his daughters, namely the plaintiffs. When that be the case, the omission to
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provide any share in the properties of Duraisamy Thevar in favour of his
daughters and execution of the Will in favour of sons of the third defendant
certainly create a serious doubt in the genuineness of the Will. When natural
inheritance is disturbed by execution of the Will, satisfying reasons have to be
given for execution of the Will in favour of the brother's sons for leaving his own
daughters. This suspicion is not dispelled by the defendants. One of the attesting
witnesses was examined as P.W1, she had totally denied the attestation and
claimed that the Will is fabricated and her signature is forged. The other attesting
witness is a truly interested witness. In the said circumstances, this Court is of the
view that the first appellate Court rightly rejected the Will and proceeded to
decree the suit for partition as claimed by the plaintiffs. The findings of the first
appellate Court, in the considered view of this Court, do not call for any
interference.
14.In Sir Chunilal V. Mehta and Sons v. The Century Spinning Co.
Ltd., 1962 reported in AIR 1962 SC 1314, the Hon'ble Supreme Court formulated
what amounts to a substantial question of law, as follows:
1.Whether it is of general public importance (or)
2.Whether it directly and substantially affects the rights of parties and if so,
3.Whether it is either an open question (in the sense not finally settled by
this Court or Privy Council or Federal Court) (or)
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4.The question is not free from difficulty and calls for discussion of
alternative views.
15.In the case before hand, the appellants have not made out any of the
aforesaid grounds to formulate substantial question of law. There is no substantial
question of law arises for consideration in this second appeal.
16.In fine, this Second Appeal is dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
Speaking : Yes / No 23.11.2023
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
mm
To
1.The Subordinate Judge,
Palani.
2.The Additional District Judge,
Dindigul.
3.The Section Officer (2 Copies),
V.R.Section,
Madurai Bench of Madras High Court, Madurai.
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G.CHANDRASEKHARAN, J.
mm
23.11.2023
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