Madras High Court
Yasodhammal vs Rani on 1 August, 2024
S.A.No.783 and 784 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORUM
DATED: 01.08.2024
THE HONOURABLE MRS.JUSTICE N.MALA
S.A.Nos.783 & 784 of 2021
and
CMP.Nos.15221 & 15227 of 2021
1.Yasodhammal
2.Raghu
3.Paranthaman
4.Jayanthi
5.Kannan
...Appellants in both S.A.Nos.
Vs
1.Rani
2.Vijaya
3.Thulasi
4.Elumalai
5.Govindaraj
6.Selvaraj
7.The Sub Registrar
Registration Department,
Avadi, Chennai.
8.Sampath
9.M.Gandhi
10.Krishnaveni
11.Balakrishnan
12.Usha
13.Manju
14.Mala
...Respondents in S.A.No.783 of 2021
and
1.M.Gandhi
1/14
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S.A.No.783 and 784 of 2021
2.The Sub Registrar
Registration Department,
Avadi, Chennai.
3.Sampath
4.Krishnaveni
5.Balakrishnan
6.Usha
7.Manju
8.Mala
9.Rani
10.Vijaya
11.Thulasi
12.Elumalai
13.Govindaraj
14.Selvaraj
...Respondents in S.A.No.784 of 2021
Prayer in S.A.No.783 of 2021 : Second Appeal is filed under Section 100 of the
Code of Civil Procedure Code, 1908 praying to set aside the Judgment and Decree
dated 28.04.2021, passed in A.S.No.30 of 2016 on the file of the Subordinate Judge,
Poonamallee, reversing the Judgment and Decree dated 11.03.2016 in O.S.No.168 of
2007 on the file of the Additional District Munsif Court, Poonamallee and allow the
appeal with costs through out.
For Appellants : Mr.S.Mukunth, Senior counsel
for Mr.A.Tamilvanan
For Respondents : Mr.Na.Malaisaravanan
for RR1 to 6, R8 & R9
Mr.T.Arunkumar, Addl. Govt. Pleader
for R7
RR 10 to 14 – No appearance
Prayer in S.A.No.784 of 2021: Second Appeal is filed under Section 100 of the
2/14
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S.A.No.783 and 784 of 2021
Code of Civil Procedure Code, 1908 praying to set aside the Judgment and Decree
dated 28.04.2021, passed in A.S.No.32 of 2016 on the file of the Subordinate Judge,
Poonamallee, reversing the Judgment and Decree dated 11.03.2016 in O.S.No.168 of
2007 on the file of the Additional District Munsif Court, Poonamallee and allow the
appeal with costs through out.
For Appellants : Mr.S.Mukunth, Senior counsel
for Mr.A.Tamilvanan
For Respondents : Mr.Na.Malaisaravanan
for R1, R3, RR9 to 14
Mr.T.Arunkumar, Addl. Govt. Pleader
for R2
RR4 to 8 – No appearance
COMMON JUDGMENT
The Second Appeal arises out of the suit filed by the plaintiff for partition
of the plaintiffs 1/3 share in the suit properties.
2. The facts of the case are as follows:
The plaintiff filed the suit for partition of her 1/2 share in the suit property
on the premise that the suit properties were self-acquired property of her father
Kishtappa Naicker who died, intestate on 22.05.1974. According to the plaintiff
Kishtappa Naicker died leaving behind the plaintiff, plaintiff's mother and defendants
1 to 5 as legal heirs. The plaintiff stated that her brother Raji Naicker predeceased his
parents leaving behind the defendants 1 to 5. The plaintiff's mother Parvathyammal
also died 20 years back. The plaintiff stated that the plaintiff had cordial relation with
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S.A.No.783 and 784 of 2021
the defendants 1 to 5, but subsequently differences arose because the defendants tried
to sell the suit property to the third parties. The plaintiff further stated that defendants
1 to 5 stealthily changed the Patta in their name and as the defendants tried to deny
the plaintiff her lawful share, the plaintiff was constrained to file the suit for partiton
of the suit properties for her 1/2 share.
3. The 2nd defendant filed written statement and the same was adopted by
the defendants 1 and 3 to 5. The defendants denied the contentions raised in the
plaint and also denied that the plaintiff and Raji Naicker were the only legal heirs of
the deceased Kishtappa Naicker. According to the defendants, the deceased
Kishtappa Naicker had two sons and two daughters i.e the plaintiff, their father Raji
Naicker, Madhammal and Raman Naicker. According to the defendants, Raman
Naicker died issueless and Madhammal died leaving behind the defendants 8 to 13 as
legal heirs. According to the defendants as their father Raji Naicker predeceased
Kishtappa Naicker, the said Kishtappa Naicker out of sympathy for his grand
children executed a unregistered Will dated 18.03.1972 bequeathing his properties,
viz., 5 acres 15 cents of land in S.Nos.422/1, 419/1, 419/2, 417/2, 421/2, 362/2,
361/1 and 362/1 in Paruthipattu village, Thiruvallur District. The defendants stated
that ever since the Will, they were in enjoyment of the properties and they had also
executed partition deed in 1992 partitioning the properties amongst themselves,
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S.A.No.783 and 784 of 2021
leaving the 4th defendant who was married and was adequately provided with
stridhana and jewels. The defendants stated that ever since the partition, the
defendants were enjoying their respective shares without any hindrance from any
quarter. The defendants also stated that the plaintiff was ousted long prior to Act 1 of
1990 and hence she was not entitled to any share in the suit properties. The
defendants therefore stated that the suit was liable to be dismissed.
4. Before the trial court the 8 th plaintiff examined himself as P.W1 and
marked Ex.A1 to Ex.A3. On the side of the defendants, 2nd defendant examined
himself as D.W1 and one Rangan, attestor of the Will as D.W2. The defendants
marked Ex.B1 to Ex.B31.
5. The trial court framed appropriate issues and dismissed the suit holding
that the Will was proved by the defendants and therefore the plaintiff could not seek
partition. Aggrieved by the judgment and decree of the trial court, the plaintiff filed
appeal in A.S.No.30 of 2016 and the 8th defendant in the suit filed the appeal in
A.S.No.32/2016. The lower appellate court on consideration of the entire materials on
record by a common judgment reversed the judgment and decree of the trial court
holding that Ex.B3, Will and partition deed Ex.B4 were forged documents and
therefore the defendants 1 to 5 had no exclusive right to the suit properties. The lower
appellate court therefore decreed the suit for partition of the plaintiff's 3 to 8 and 7 th
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S.A.No.783 and 784 of 2021
defendants 1/3 share in suit items 1 to 9 and other relief's. Aggrieved by the common
judgment and decree of the lower appellate court the defendants 1 to 5 have filed the
above Second Appeal's.
6. This Court while admitting the Second Appeals framed the following
substantial questions of law:
"(a) When the defendants 1 to 5 proved the WILL dated
18.03.1971, Ex.B-3 in accordance with Section 68 of Indian Evidence
Act, by examining the D.W.3 attesting witness, is the learned
Subordinate Judge right in holding the WILL as the one not proved
and the judgment of the First Appellate Court suffers from non-
consideration of material evidence in that behalf?
(b) Whether the Appellate Court is right in holding that
WILL Ex.B-3 is forged one on the ground that the 3 rd attesting witness
has affixed his signature in a different ink?
(c) Whether the finding of the Appellate Court that the suit
properties belonged to Parvathy Ammal and not that her husband
Kishtappa Naicker, contrary to the pleadings and evidence of either
parties was legally sustainable?
(d) Whether the exclusion of the other legal heirs under the
Ex.B-3 WILL alone be found to be suspicious circumstances when the
testator himself had explained the circumstance under which the
properties are bequeathed to D2 to D5."
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S.A.No.783 and 784 of 2021
7. Mr.S.Mukunth, the learned Senior counsel appearing for the appellants
submitted that the Will, Ex.B3 was executed several decades ago and therefore the
lower appellate court erred in holding that the Will was a forged document. The
learned counsel further submitted that the revenue records clearly proved that the
plaintiffs were well aware of the Will and inspite of the same they did not question
the Will at any point of time. The learned counsel submitted that the lower appellate
court erred in thinking that the Will was shrouded by suspicious circumstances over
looking that the defendants 2 to 5 were minor's at the time of the death of their father
and therefore out of sympathy, love and affection, their grand-father Kishtappa
Naicker executed the Will in their favour. The learned senior counsel therefore prayed
that the judgment and decree of the lower appellate court ought to be set aside.
8. The learned counsel for the respondents on the hand submitted that the
lower appellate court in its reversing judgment had given cogent and justifiable
reasons for over turning the judgment of the trial court and therefore this Court sitting
in Second Appeal ought not to interfer with the factual findings of the lower appellate
court.
9. I have heard both the learned counsels and I have perused the materials
placed on record.
10. The parties will be referred to as per their rank in the trial court.
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S.A.No.783 and 784 of 2021
The geneology of the parties are as follows:
Kistappa Naicker (Died on 1974)
and
Parvathy Ammal (died on 1980)
Raman Naicker Raji Naicker Saradha Madha Ammal
(died without (Died on 1971) (1st Plaintiff) (Died)
any issues) (Died on 2.4.10)
1) Yasodha Ammal (D1) 1) Chellappa Reddy (P2) 1)M.Gandhi, (D8)
2) Raghu (D2) (Died on 7.9.10) 2)Krishnaveni (D9)
3) Paranthaman (D3) 2) Rani, (P3) 3)Balakrishnan(D10)
4) Jayanthi (D4) 3) Vijaya,(P4) 4)Usha (D11)
5) Kannan (D5) 4) Thulasi, (P5) 5)Manju (D12)
5) Elumalai, (P6) 6)Mala (D13)
6) Govindaraj, (P7)
7) Selvaraj (P8)
8) Sampath (D7)
11. The substantial question of law 'c' was not argued by the learned senior
counsel and therefore the same is not discussed. As the substantial questions of law a,
b & d are inter related the same are taken up together. The only point that arises for
consideration in the Second Appeal is whether Will Ex.B3 dated 18.03.1972 is valid
and genuine document and whether it was proved by the defendants in a manner
known to law.
12. The plaintiffs 2 to 8 and the 7th defendant are the children and husband
of the deceased 1st plaintiff. The defendants 8 to 13 are the children of Madhammal
the other deceased daughter of Kishtappa Naicker. The defendants 1 to 5 are the
wife and children of Raji Naicker, one of the deceased son's of Kishtappa Naicker.
Raman Naicker one other son of Kishtappa Naicker died issue less. The admitted
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S.A.No.783 and 784 of 2021
facts are that the suit properties and other properties were self-acquired properties of
Kishtappa Naicker. Raji Naicker the husband and father of the defendants pre-
deceased Kishtappa Naicker. That Kishtappa Naicker died in 1974 is also
undisputed. Whereas the plaintiffs contend that Kishtappa Naicker died intestate, the
defendants contend that Kishtappa Naicker executed a Will Ex.B3 on 18.03.1972
bequeathing his properties of an extent of 5 acres 15 cents infavour of the defendants
2 to 5. The defendants further contend that thereafter the defendants 2, 3 and 5
executed partition deed under Ex.B4 dated 07.07.1992 and they were in enjoyment of
the respective shares allotted to them.
13. The defendants examined D.W2 one R.Rangan as an attestor of Ex.B3,
the Will. The lower appellate court found that the Will was not valid on two grounds,
one, that it was not at all referred in the partition deed executed by the defendants 2,
3 and 5 on 07.07.1992 and two that the 3rd attesting witness, D.W2 had signed in
different ink in the Will. Taking into consideration of the aforesaid, the lower
appellate court found that the Will was a fabricated one and the signature of D.W2
as a 3rd witness was taken only for the purpose of satisfying the requirement of law on
attestation. In my view, the finding of the lower appellate court on the genuineness of
the Will cannot be faulted for the reasons discussed hereunder, apart from ones cited
by the lower appellate court.
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S.A.No.783 and 784 of 2021
14. It is seen that the defendants case in the written statement was that
Kishtappa Naicker their grand-father executed the Will on 18.03.1972 out of
sympathy for them because, their father, Raji Naicker pre-deceased him and they
were minors at that time. In the written statement it was clearly stated that after the
death of Kishtappa Naicker, the defendants as absolute owners of the entire
bequeathed property partitioned the same and also got the revenue records transferred
in their name. Contrary to the stand taken in the written statement, the recitals in the
partition deed executed by the defendants on 07.07.1992 states that the properties
after the demise of Kishtappa Naicker, their grand-father were enjoyed by their father
Raji Naicker and after him they were in enjoyment of the defendants. The defendants
specific case was that Kishtappa Naicker executed the Will out of sympathy for them
as they were minors as their father pre-deceased him. While so, where was the
question of Raji Naicker enjoying the property after the demise of Kishtappa
Naicker. The said recital in the partition deed is fatal to the defendants case on the
execution of the Will by Kishtappa Naicker in their favour.
15. It is pertinent to note here that the partition deed which was executed
20 years after the Will did not even whisper about the Will. The partition deed
proceeds on the basis of intestacy and not on testacy. One of the properties covered
under the Will is stated to have belonged to Parvathyammal, the grand-mother of the
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S.A.No.783 and 784 of 2021
defendants, how and under what circumstances the same came to be dealt with under
the Will is not explained. One more important aspect that is to be noted here is that
the defendants have not whispered about the publication of the Will any where in the
written statement. The Will is unregistered Will and therefore the defendants ought to
have atleast attributed knowledge to the plaintiff about the Will, the said aspect also
reflects on the genuineness of the Will. Even the revenue documents filed by the
defendants relate to the periods 1994, 1999, 2001, 2004, 2006, 2007, 2013 and
2015. The documents Ex.B17, Ex.B18, Ex.B19, Ex.B20, Ex.B25 and Ex.B27 were
all post suit documents. It is not the case of the defendants that the revenue records
were mutated after notice to the plaintiffs. Therefore mutation of revenue records in
favour of the defendants will not advance defendants case as the same were effected
without notice to the plaintiffs. I am therefore of the view that the finding of the lower
appellate court that Will was not genuine cannot be faulted. As the Will is held to be
invalid, the plainitffs and the 7th defendant are entitled for a decree for partition of
their 1/3 share in the suit properties.
In view of the above discussions, the substantial questions of law are
answered against the appellants and both the Second Appeals are dismissed. No
costs. Consequently connected CMP's are closed.
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S.A.No.783 and 784 of 2021
01.08.2024.
Index:Yes/No
Speaking order:Yes/No
Neutral Citation:Yes/No
dsn
To
1. The Subordinate Judge,
Poonamallee.
2. The Additional District Munsif Court,
Poonamallee.
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S.A.No.783 and 784 of 2021
N.MALA,J.
dsn
S.A.No.783 and 784 of 2021
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S.A.No.783 and 784 of 2021
01.08.2024
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