Madras High Court
Kalyanakumar vs Navaneethakrishnan on 23 November, 2023
Author: P.T.Asha
Bench: P.T.Asha
S.A.No.528 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.11.2023
CORAM :
THE HONOURABLE MS.JUSTICE P.T.ASHA
S.A.No.528 of 2021
and
C.M.P.No.10704 of 2021
Kalyanakumar ...Appellant
Vs.
1. Navaneethakrishnan
2. Chandra
3. Nagavalli ... Respondents
Prayer:- This Second Appeal has been filed under Section 100 of
Civil Procedure Code against the Judgment and decree dated
11.02.2021 passed in A.S.No.140 of 2019 on the file of the IV
Additional District and Sessions Judge, Coimbatore confirming the
judgment and decree dated 20.02.2019 in O,S.No.63 of 2017 on the
file of the Sub Judge, Mettupalayam,.
For Appellant : Mr.E.Karthik Raja
For respondents : Mr.P.Veeraraghavan
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1/16
S.A.No.528 of 2021
JUDGMENT
The unsuccessful first defendant before the Courts below has
preferred the above second appeal challenging the judgment passed
by the learned IV Additional District and Sessions Judge,
Coimbatore in A.S.No.140 of 2019 in and by which, the learned
Judge has confirmed the judgment and decree passed by the learned
Subordinate Judge, Mettupalayam in O.S.No.63 of 2017.
2. The facts are briefly set out herein below and the parties
are herein referred to in the same litigative status as before the trial
Court.
3.The plaintiff had filed the suit for partition of the suit
properties into four shares and to allot one share to him. It is the
case of the plaintiff that the first defendant is his brother, the
second defendant is his mother and the third defendant is his sister
and they are the legal heirs of one Krishnasamy. It is the case of
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the plaintiff that the first item of the suit property belonged to
Krishnasamy under a settlement deed dated 16.09.1966. The said
Krishnasamy had died intestate on 08.08.2008 and on his demise,
the property devolved equally on the plaintiff and the defendants
herein.
4. The second defendant had remained ex-parte and the first
defendant had filed a written statement inter-alia admitting the fact
that the properties devolved to Krishnasamy and he had died on
08.08.2008. However, it is the contention of the first defendant that
Kandasamy had executed a Will dated 06.06.2008 in and by which
he had bequeathed the properties on his legal heirs. He had also
raised a plea that all the properties of Kandasamy had not been
included in the suit and therefore the suit is hit by partial partition.
He would further submit that the Will and other documents are with
one S.Rajendran from whom the father, Kandasamy had borrowed a
sum of Rs.15,00,000/- in the year 2008. Therefore, he would
submit that he is unable to reveal the complete details of the
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properties contained in the Will.
5. An additional written statement thereafter came to be filed
by the first defendant in which he would submit that the third item
of suit property was included after he had pointed out the anomaly
in his written statement. Further, he would submit that the plaintiff
who is very much aware about the Will dated 06.06.2008 despite
which the present suit has been filed. He would also contend that
the Will makes provision in respect of all the properties. He would
therefore contend that the suit has to be dismissed.
6. The third defendant has not filed any written statement.
7. The trial Court had framed the following issues.
1. Whether the Will dated 06.06.2008 alleged to
have been executed by Krishnasamy as alleged
in the statement of D1 is true and valid?
2. Whether the plaintiff is having 1/4th share in
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the suit properties?
3. Whether the plaintiff is entitled to partition and
separate possession as prayed for?
4. To what other reliefs?
8. The plaintiff had examined himself as P.W1 and marked
Exs. A1 to A13. On the side of the defendants, the first defendant
had examined himself as D.W1 and one S.Rajendran, who is said to
be creditor of their father, Krishnasamy as D.W2 and the Will was
marked as Ex.B1, dated 06.06.2008.
9. The learned Judge, on considering the Will-Ex.B1, came to
the conclusion that the Will is shrouded in suspicious circumstances
and had also held that the witness who has attested the Will is a
close associate of the first defendant and the first defendant has
taken an active part in the execution of the Will. That apart, the
first defendant has not produced the Will at the earliest point in
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time despite being asked to do so. Therefore, the learned Judge
held that the first defendant had failed to prove the Will and
therefore, the property of Kandasamy had to be divided as per
Section 8 of the Hindu Succession Act. Therefore, the suit came to
be decreed. Aggrieved by this judgment and decree, the first
defendant had filed A.S.No.140 of 2019 on the file of the IV
Additional District and Sessions Judge, Coimbatore. The learned
Judge, by judgment and decree dated 11.02.2021, dismissed the
appeal, confirming the judgment and decree of the trial Court.
Aggrieved by this concurrent judgment and decree, the appellant
before this Court.
10. The second appeal was admitted on the following
substantial questions of law:
"1. When the Will was not challenged by the
party to the suit, can the Courts below suo-motu
disbelieve the execution of the Will?
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2. Whether the Courts below hold against the
Will, when the party to the proceedings has not
stated anything against the Will in pleadings and
has not elucidated anything against the execution
of the Will in the cross examination?
3.Whether the Courts below are right in
holding that the execution of the Will is
unbelievable only on guesses and surmises when
the same has been proved as per law?
4. Whether the Courts below can hold
against the execution of the Will, when the same
was proved by the party asserting it and the party
affected has not taken any steps to disprove the
Will?
5.Whether the Courts below are right in
holding that, the attesting witness is not genuine
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only because the attesting witness does not know
the details the family background of the executants
of the Will?
11. The learned counsel for the first defendant would submit
that a mere reading of Ex.B1-Will would show that the father,
Kandasamy had taken into consideration everyone under the Will.
He would contend that provision has been made for the wife and
after her, the properties were to devolve on his two sons since
according to the father, he had provided the daughter adequately at
the time of her wedding. He would submit that the Will has been
proved in the manner known to law as the attesting witness had
been examined and has spoken about the execution. He would
submit that these factors have been totally overlooked by the Court
below. He would draw the attention of the Court to evidence of
P.W1, in his cross examination, where he has admitted that he had
omitted to include one property which had been allotted to the
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share on his father in the partition in the year 1966 and further, he
has pointed out the admission of the plaintiff that he is in
occupation of the first floor and in the other portion, his brother, the
first defendant, was residing. He would also point out the
admission of the plaintiff as P.W1 about the non filing of documents
and also the non inclusion of certain properties that had been sold.
The fact that the plaintiff is admitted to be in possession of the
properties along with the defendants would only go to show that the
desire of the testator as set out in the Will has been given effect to.
He would also draw attention to the fact that the first defendant
had been allotted an extra property as he has undertaken to
discharge the loan which was taken from one Rajendran (the
attestor of the Will). He would also rely upon the statement of
D.W1 wherein it is stated that in the first floor, one portion had
been constructed by the plaintiff and one portion by the first
defendant and that this statement has been rebutted by the plaintiff,
all of which would clearly show that the Will had been given effect
to.
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12. Per contra, Mr.P.Veeraraghavan, the learned counsel for
the plaintiff, would submit that the first defendant's entire case
revolves around the Ex.B1-Will which he has not proved in the
manner known to law. The learned counsel would submit that the
attestor was examined as D.W2. He would also point out the
collusion between the first defendant and D.W2 is clearly evident
from their evidence regarding the repayment of the loan. He would
further submit that, in his chief examination, D.W2 would submit
that the amount was given by the first defendant to his deceased
father, who in turn had handed over the money to P.W1 there upon,
D.W1 had returned the promissory note to Kandasamy, who had
thereupon given it to the first defendant. However a copy of this
alleged pronote has not been produced before this Court. In his
cross examination, he has admitted the presence of the first
defendant, the propounder of the Will at the time of the alleged
execution of the Will, which would clearly show the act of law that
has been taken by the first defendant. He would also concede that
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the first defendant had not produced the Will despite repeated
requests and directions from the Court and has produced it much
later. The plaintiff has not sought any relief challenging the Will.
He would therefore pray that the second appeal be dismissed and
the judgment and decree of the Courts below be confirmed.
13. Heard the learned counsel on either side and perused the
materials available on record.
14. The suit revolves around the Will-Ex.B1. If the first
defendant is able to establish the genuineness of Ex.B1, then the
property is not available for partition. However, if Ex.B1 is proved
to be a false document, then the partition has to be effected. The
first defendant has put across Ex.B1-Will dated 06.06.2008
claiming the same to have been executed by the deceased
Krishnasamy. A reading of recitals of the Will would indicate that
the provision has been made for the wife to only enjoy the
properties till her life time. Thereafter, it was to devolve upon the
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sons namely, the plaintiff and the first defendant. The first
defendant was to get an extra property since he had undertaken to
discharge the loan taken by his father Krishnasamy from one
S.Rajendran, who was examined as D.W2.
15. A reading of the judgment of the Courts below would
show that the first defendant who has mentioned the Will in his
original written statement has not been produced the same at the
earliest point in time to the other sharers. The Will is an
unregistered document. In the first instance, the first defendant
would submit that the Will and other details are with
Rejendran/D.W2 Thereafter, the plaintiff has amended the suit and
an additional written statement came to filed. Even in the
additional written statement, the first defendant has not produced
the Will. The Will has not been produced till the oral examination
had commenced and it was only on 13.12.2018, during the cross
examination that the first defendant had produced the Will. The
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suit was filed in the year 2013 and the Will came to be filed only on
13.12.2018. The Courts below have also taken note of the proximity
between the date of death and the execution of Ex.B1-Will. D.W2
has been examined stating that he is the close family friend. D.W1
claims to have known his family over 20 years. However, he is not
able to give any details about the ailments of the family members
collectively. Therefore, the Courts have taken note all these factors
and held that the Will is not proved. Another factor which has to be
taken note of is that the first defendant has pleaded that the amount
due by his father to D.W2 had been discharged and D.W2 would
submit that the promissory note had been handed over back to the
first defendant. However, the first defendant has not chosen to file
this document (pronote) into Court, which once again establishes
the collusive pleadings of parties. Once the Will is not proved in
the manner known to law, then the property has to devolve upon all
the legal heirs as per the provisions of Section 8 of the Hindu
Succession Act, whereby each would get a 1/4th share in the
properties. The Courts below are bound to consider the veracity of
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the Will even if there is no serious challenge to date as it is the
bounden duty of the Court to ensure the provisions of Section 63(c)
of the Indian Succession Act and Section 68 of the Indian Evidence
Act are scrupulously complied with. The Courts are bound to sit in
the arm chair of the testator while deciding upon a Will which is
put forward by one of the parties to the proceeding. The Courts
below have listed out the suspicious circumstances surrounding the
execution of the Will and this Court cannot ignore these findings.
Therefore, the substantial questions of law are held against the
appellant/first defendant. Accordingly, the second appeal is
dismissed. The judgment and decree of the Courts below stand
confirmed. No costs. Consequently, connected miscellaneous
petition is closed.
23.11.2023
Index :Yes/No
Internet:Yes/No
srn
To
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1. The IV Additional District and Sessions Judge, Coimbatore
2. The Sub Judge, Mettupalayam.
3. The Section Officer, V.R.Section, Section, High Court.
https://www.mhc.tn.gov.in/judis
P.T.ASHA.J
srn
23.11.2023
https://www.mhc.tn.gov.in/judis
