Madras High Court
Rani vs T.N.Vayamani (Deceased) on 2 April, 2025
Author: V.Sivagnanam
Bench: V.Sivagnanam
A.S.No.13 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.03.2025
PRONOUNCED ON : 02.04.2025
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
A.S.No.13 of 2014
1 Rani
2 S.Vaidyanathan
3 Kalvikarasi
4 Senthamizhselvi (died)
5 Nedunchezhian
6 Vijay Mani ... Petitioners
Appellant 5 to 6 and RR18 & 19 brought
on record as LRs of the deceased 4th
appellant (Senthamizhselvi) vide court
order dated 03.12.2021 made in CMP
No.16119, 16124 & 16126 of 2021 in
A.S.No.13/2014.) Vs
1 T.N.Vayamani (deceased)
2 T.N.Agilan
3 T.N.Vinmani
Natarajan [died]
4 Chandran
5 Mallika
6 Sakkubai(died)
7 Saroja
8 Vijaya
9 A.Pugalendhi
10 A.Mani
11 Santhi
12 B.Sathish Kumar
1/22
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A.S.No.13 of 2014
13 B.Senthil
14 B.Suresh
(RR9 to 14 brought on record as LRs of
the deceased 6th Respondent viz. Sakkubai
vide order of Court dated 12.11.2019
made in CMP.No.8030 and 8042 of 2019
in A.S.No.13 of 2014.)
15 Kasturi
16 Lakshmi
17 Senkathiravan
(RR15 to 17 brough on record as LRs
of the deceased T.N.Vayamani R1 vide
order of Court dated 27.11.2019 made
in CMP.No.25244 of 2019 and 25246 of 2019
in A.S.N.13 of 2014.)
18 Velpandiyan
19 Velpari ... Respondents
PRAYER : First Appeal has been filed under Section 96 r/w Order 41 Rule 1
of CPC against the Judgement and Decree dated 12.09.2013 passed in
O.S.No.149/2004 on the file of the Principal District Court, Cuddalore.
For Appellants ... Mr.K.Govi Ganesan
For Respondent ... Mr.S.Rajavelavan
Nos.2 to 5 & 7 to 17
For Respondent ... Notice served ( No appearance)
No.18
For Respondent ... Dismissed
No.19 vide Court order dt.03.02.2025
2/22
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A.S.No.13 of 2014
JUDGMENT
Aggrieved over the Judgement and Decree dated 12.09.2013 passed in
O.S.No.149 of 2004 by the Principal District Judge, Cuddalore.
2.For the sake of convenience, the parties are referred to as per their
rankings in the trial Court.
3.Suit for partition and separate possession.
4.The defendants in O.S.No.149 of 2004 on the file of the Principal
District Court, Cuddalore, is the appellants herein.
5.The plaintiffs' case is as follows:
Kuppusami Pillai married twice. His first wife is Thayarammal. His
second wife is Amaravathi. The marriage of Amaravathi was celebrated on
25.10.1926. Through the 1st wife Thayarammal, Kuppusami Pillai had 3 sons
by name Arumugham, Subramaniam and Shanmugham. All the aforesaid
persons are dead. Shanmugham died without marriage. Arumugham's wife is
dead. He left behind him only one issue, a female issue by name Rani, who is
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the 1st defendant in the suit. Subramanian has a son namely Vaidayanathan,
who is the 2nd defendant and 3 daughters namely Kalvikarasi,
Senthamizhselvi and Vijaya. They are defendants 3 and 4 and 9th plaintiff in
the suit respectively. Subramanian's wife is dead.
5.1.Through the 2nd wife Amaravathi, Kuppusamy had only 4 daughters
and no sons. They are Dhanalakshmi, Meenakshi, Sakkubai and Saroja.
Dhanalakshmi is no more. Her husband Natarajan is also dead. Plaintiffs 1 to
3 are their 3 sons and her legal heirs. Meenakshi is also dead. Plaintiffs 4 to
6 are husband, son and daughter and hence, her legal heirs. Plaintiff 7 & 8
are other two daughters. 9th plaintiff has married 2nd plaintiff.
5.2.The suit properties belonged to Kuppusami Pillai. On the death of
Kuppusami Pillai, all his issues through both wives became entitled to his
properties equally. Of them, Shanmugham died without any issues. Hence,
in all the properties, the remaining two sons Arumugham, Subramaniam and 4
daughters Dhanalakshmi, Meenakshi, Sakkubai and Saroja each became
entitled to 1/6 share. Since Dhanalakshmi is no more, plaintiffs 1 to 3 are
entitled to 1/6 share. Plaintiffs 4 to 6 are entitled to the 1/6 share of
Meenakshi. Plaintiffs 7 & 8 are each entitled to 1/6 share. Arumugham's 1/6
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share has been obtained by the 1st defendant. Subramaniam's 1/6 share shall
be succeeded to by 9th plaintiff and defendants 2 to 4. Thus, 9th plaintiff is
entitled 1/24 share while defendants 2 to 4 are entitled to 1/24 share each.
Thus, the position of sharers is as follows:
Plaintiffs 1 to 3 1/6 share
Plaintiffs 4 to 6 1/6 share
7th plaintiff 1/6 share
8th plaintiff 1/6 share
1st Defendant 1/6 share
9th plaintiff 1/24 share
2nd defendant 1/24 share
3rd defendant 1/24 share
4th defendant 1/24 share
The 1st defendant is residing in suit item 1. 3rd defendant is residing in
suit item 3. In suit item 2, a tenant is in occupation. Till recently, the parties
were living amicably. There has been no partition till date. On and from
15.8.2004 plaintiffs have been making a demand for partition but the
defendants had been evading. Hence, plaintiffs 1, 5, 7 & 8 issued a notice
dated 26.8.2004 to defendants 1 and 2 calling upon them to effect a division.
The plaintiffs are not concerned with the release deed alleged to have been
executed by 1st defendant in favour of 2nd defendant. The plaintiffs are not
parties to any of the transactions. Their right has not been denied until now.
In the circumstances, the question of adverse possession and ouster do not
arise and thus, pleaded to allow the suit.
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6.The defendants contested the suit and filed a written statement and
denied the allegations contained in the plaint and contended that the
deceased Kuppusamy had two wives and they are no more. As per the
genealogy, the Plaintiffs excepting the 9th Plaintiff all are legal heirs of the
second wife of the deceased Kuppusamy and the defendants are the legal
heirs of the deceased Kuppusamy. None of the plaintiffs are entitled for a
share in the suit property. The plaintiffs have come up with a false case. The
deceased Kuppusamy has executed a Will dated 10.09.1950. As per the Will,
the said Kuppusamy has gifted all the suit mentioned properties to the male
legal heirs of his family. As per the Will, the male successors alone are
entitled to share in the suit property. Accordingly, the three sons of
Thayarammal, the first wife of the deceased Kuppusamy partitioned the suit
properties among themselves in the year 1953. The first son Arumugam Pillai,
and the second son Subramaniam Pillai, and the third son namely one minor
Shanmugam having his mother Thayarammal as his guardian. But the said
Shanmugam died at an early age and his share was once again vested with
both the brothers namely Arumugam and Subramaniam, as there are no other
male successors.
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6.1.The learned counsel further contended that during the year 1958,
the said Arumugam executed a release deed in favour of Subramaniam. Hence
after 1958, the entire properties were administered and enjoyed by the said
Subramaniam solely. After the death of the said Subramaniam, his legal heirs
namely the defendants started enjoying the suit properties. But as per the
Will, the male member of the legal heirs of the deceased Subramaniam,
namely the 2nd Defendant alone is entitled to the suit property. Hence there is
no question of partition ever among the other female legal heirs of
Subramaniam. The second wife of Kuppusamy namely Amaravathi had
female issues only. They were not entitled to have title rights over the suit
property as per the Will and thus pleaded to dismiss the suit.
7.The trial Court, upon the above pleadings, framed the following
issues:
1.Whether the two wives of Kuppusamy Pillai
namely Thayarammal and Amaravathi were entitled to his
properties?
2.Whether the Will dated 10.09.1950 executed by
Kuppusamy is valid and binding upon the parties?
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3.Whether the released deed executed by Arumugam
in favour of Subramani in the year 1958 is binding on all
the parties?
4.Whether the 8th plaintiff Saroja is liable for the
marriage expenditures incurred by the 3rd defendant and
others?
5.Whether the plaintiffs are entitled to 17/24 shares
in the “B” schedule of the suit properties?
6.To what relief, the plaintiffs are entitled?
8.On the side of the plaintiffs, one witness was examined as PW1 and
Ex.A1 to Ex.A7 were marked. On the side of the Defendants, three witnesses
were examined as DW1 to DW3 and Ex.B1 & Ex.B15 were marked. One
document was marked as X1.
9.The trial Court, upon considering the oral and documentary evidence
on record, passed the preliminary decree with costs and the plaintiffs are
entitled to 17/24 shares in the B schedule properties and to divide the
properties by appointing an advocate/commissioner by metes and bounds into
24 equal shares and to allot 17 such shares to the plaintiffs in FD proceedings
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and also the future account to be determined in separate proceedings in FD
proceedings, aggrieved by this, the defendants have preferred the appeal suit.
10.The learned counsel appearing for the appellants/defendants
submitted that the judgment and decree of the trial Court is against law,
weight of evidence and probabilities of the case and contended that the Court
below failed to see that admittedly the marriage between Kuppusamy and
Amaravathi Ammal on 25.10.1926 much prior to the commencement of the
Hindu Succession Act, 1956 and therefore, the Plaintiffs are not entitled to
any share in the suit properties and the deceased Kuppusamy bequeathed the
suit properties to the male members only through his Will dated 10.09.1950
and the said Document is more than 30 years old and as per section 90 of
Evidence Act, it is a valid one.
10.1. The learned counsel further contended that the Court below
failed to see that the Attestors of EX.B.4 Will is not alive and the
appellants/defendants have proved the same by marking Ex.B.1 and B2 letters
which will prove the said Will. Further, the Court below failed to see that
Ex.B.4, discloses that the suit properties are self acquired properties of late
Kuppusamy and it is not necessary to state that how it was purchased unlike a
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Conveyance Deed. The Court below failed to consider the vital admission of
the signature of the Author of Ex.B1 and B2 to prove that Ex.B.4 came into
existence prior to that itself. The reasoning of the Court below that there is no
pleadings regarding Ex.B.1 and B.2 is not only erroneous but absolutely
perverse overlooking that the defendants have pleaded about the Will Ex.B.1
and B2 were marked to establish the Will and there is no need to plead such
documents and thus, pleads to allow the appeal suit.
11.To support his argument, the learned counsel appearing for the
defendants relied upon the following judgments:
1.(2024) 5 MLJ 282 (K.Rajeswari and others Vs.
Kungumayee (Deceased) and others.
2.2024 SCC OnLine Mad 5153 (Marathal (died) and
another Vs. Kanniammal (died) and others)
12.The learned counsel appearing for the respondents/plaintiffs
supported the judgment of the trial Court and contended that the presumption
under Section 90 as to the regularity of documents more than 30 years of age
is inapplicable when it comes to proof of wills, which have to be proved in
terms of Sections 63(c) of the Succession Act, 1925 and Section 68 of the
Evidence Act, 1872.
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13.To support his argument, the learned counsel appearing for the
respondents/plaintiffs relied upon the following judgments:
1.2023 SCC OnLine SC 255 (Ashutosh Samanta (D) by
Lrs., and others Vs. SM.Ranjan Bala Dasi and others)
2.2024 (3) MWN (Civil) 134 ( Narasimha Bhattar Vs.
Venkatesan and 10 others)
14.The points for consideration before this Court are,
1.Whether the plaintiffs are entitled to 17/24 shares in
the “B” schedule of the suit properties?
2.Whether the Will dated 10.9.1950 executed by
Kuppusamy is true, valid and binding upon the parties?
3.To what relief, the plaintiffs are entitled?
15.I have considered the matter in the light of the submissions made on
either side and perused the materials available on record.
16.On perusal of the materials available on record, the fact reveals that
Kuppusamy had two wives, namely, Thayarammal (first wife) and
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Amaravathi (second wife). Further, it is noticed that on 25.10.1926
Kuppusamy married Amaravathi (second wife). Through his first wife
Thayarammal, Kuppusamy had three sons viz., Arumugam, subramaniam and
Shanmugam. Now, all are died. Shanmugam died without marriage.
Arumugam's wife also died. He had one female issue namely Rani (the first
defendant), Subramaniam has a son and 3 daughters. The 2nd defendant
Vaidayanathan is only son of the deceased Subramaniam and Kalvikarasi,
Senthamizhselvi and Vijaya are daughters of the deceased Subramaniam, in
which, Kalvikarasi and Senthamizhselvi are the defendants 3 & 4 and Vijaya,
is the 9th plaintiff in the suit. The second wife Amaravathi has four daughters
namely Dhanalakshmi, Meenakshi, Sakkubai and Saroja and through her, no
son was born. Now, Dhanalakshmi is died. Her husband Natarajan is also
died. Plaintiffs 1 to 3 are sons and daughter of Dhanalakshmi. Meenakshi is
died. The plaintiffs 4 to 6 are husband, son and daughter of the deceased
Meenakshi. Plaintiffs 7 and 8 are remaining two daughters of the deceased
Kuppusamy. The 9th plaintiff married the 2nd plaintiff. The relationship is
admitted by the parties.
17.The suit properties are owned by Kuppusamy Pillai is also admitted
and not disputed. Kuppusamy married Amaravathi, who is the second wife,
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before coming into force of Hindu Succession Act, 1956. Her status is also
not disputed. Therefore, the deceased Thayarammal and Amaravathi are legal
heirs of the deceased Kuppusamy and entitled to get a share in the estate of
Kuppusamy. It is also not disputed. According to the defendants, Kuppusamy
executed a Will dated 10.09.1950, in which, he bequeathed all the properties
to his male members. The said unregistered Will is evidenced as Ex.B4. The
knowledge about the Will dated 10.09.1950 (Ex.B4) to the parties, is
evidenced by Ex.B1 & Ex.B2 letters dated 17.07.1953 a letter from Natarajan
to Subramanian and dated 12.05.1995 a letter from Natarajan to
Vaithiyanathan.
18.Further, it is also noticed that the properties are purchased by
Kuppusamy Pillai by way of sale deed from Kuppammal and others. This fact
is evidenced by Ex.B3 sale deed dated 09.10.1936. In pursuance of Ex.B3
sale deed dated 09.10.1936, Kuppusamy Pillai purchased the suit properties
by way of sale deed is established and this is personal property. Therefore, on
his death, his legal heirs are equally entitled to have a share. This is also not
seriously disputed by the parties. The only question remaining is, whether the
Will dated 10.09.1950 Ex.B4 is true and proved by the parties.
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19.Admittedly, the Will dated 10.09.1950 is a 30 year old document.
20.The learned counsel appearing for the defendants/appellants
contended that Section 90 of Evidence Act, it does not exclude a Will from
it's operation. As per Section 90, if any document which is more than 30 years
old and it is produced from proper custody, the Court may presume that the
signatures on every part of such document is that of the person who executed
the document and if it is a document which requires execution or attestation,
it was duly executed and attested by the persons who is said to have executed
and attested this document. To support his argument, he relied on the
judgment of this Court reported in 2024 SCC OnLine Mad.5153 (Marathal
(Died) and another Vs. Kanniammal (died) and others and (2024) 5 MLJ
282 (K.Rajeswari and others Vs. Kungumayee (Deceased) and others).
21.In reply, the learned counsel appearing for the plaintiffs/respondents
submitted that the judgment relied on by the learned counsel is not correct
decision of law and in view of the judgment of this Hon'ble Supreme Court in
Asutosh Samanta (D) by Lrs and Others V. SM.Ranjan Bala Dasi and
Others), the presumption under Section 90 as to the regularity of documents
more than 30 years of age is inapplicable when it comes to proof of wills,
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which have to be proved in terms of Sections 63(c) of the Succession Act,
1925 and Section 68 of the Evidence Act, 1872.
22.With regard to the applicability of Section 90 Evidence Act, in the
case of proof of Will, the Hon'ble Supreme Court in Ashutosh Samanta (D)
by Lrs. And others Vs. SM.Ranjan Bala Dasi and others) reported in 2023
SCC OnLine SC 255 stated the legal position and observation as follows:
“11. The main argument of the appellant is that the
application for letters of administration was made after a
considerable delay, and that the courts below should not have
relied on Section 90 of the Evidence Act, 1872, which reads
as follows:
"Section 90 - Presumption as to documents thirty years
old
Where any document, purporting or proved to be thirty
years old, is produced from any custody which the Court in
the particular case considers proper, the Court may presume
that the signature and every other part of such document,
which purports to be in the handwriting of any particular
person, is in that person's handwriting, and, in the case of a
document executed or attested, that it was duly executed and
attested by the persons by whom it purports to be executed
and attested.
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Explanation-Documents are said to be in proper
custody if they they are in the place in which, and under the
care of the person with whom, they would naturally be; but
no custody is improper if it is proved to have had a legitimate
origin, or the circumstances of the particular case are such
as to render such an origin probable.
This explanation applies also to section 81."
12.This court, in M.B. Ramesh (D) by L.Rs. v. K.M.
Veerahe Urs (D) by L.Rs., while dealing with a similar
argument regarding applicability of Section 90 in the case of
proof of will, held as follows:
"At the same time we cannot accept the submission on
behalf of the Respondents as well that merely because the
will was more than 30 years old, a presumption under
Section 90 of the Indian Evidence Act, 1872 ('Evidence Act
for short) ought to be drawn that the document has been duly
executed and attested by the persons by whom it purports to
have been executed and attested. As held by this Court in
Bharpur Singh Shamsher Singh reported in (2009) 3 SCC
687, a presumption regarding documents 30 years old does
not apply to a will. A will has to be proved in terms of Section
63(c) of the Succession Act read with section 68 of the
Evidence Act.
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That takes us to the crucial issue involved in the
present case, viz. with respect to the validity and proving of
the concerned will. A Will, has to be executed in the manner
required by Section 63 of the Succession Act. Section 68 of
the Evidence Act requires the will to be proved by examining
at least one attesting witness. Section 71 of the Evidence Act
is another connected section "which is permissive and an
enabling section permitting a party to lead other evidence in
certain circumstances", as observed by this Court in
paragraph 11 of Janki Narayan Bhoir v. Narayan Namdeo
Kadam reported in (2003) 2 SCC 91 and in a way reduces the
rigour of the mandatory provision of Section 68. As held in
that judgment Section 71 is meant to lend assistance and
come to the rescue of a party who had done his best, but
would otherwise be let down if other means of proving due
execution by other evidence are not permitted."
13. In view of the above decision, wills cannot be
proved only on the basis of their age - the presumption under
Section 90 as to the regularity of documents more than 30
years of age is inapplicable when it comes to proof of wills,
which have to be proved in terms of Sections 63(c) of the
Succession Act, 1925, and Section 68 of the Evidence Act,
1872.
In view of the above decision of the Hon'ble Supreme Court, the
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judgment relied on by the learned counsel appearing for the
defendants/appellants to support his argument that the Will being more than
30 years old and the presumption under Section 90 of the Act is inapplicable
and has no merit and rejected.
23.The legal principles in regard to proof of a Will are no longer res
integra. A will must be proved having regard to the provisions contained in
clause (c) of Section 63 of the Succession Act, 1925 and Section 68 of the
Evidence Act, 1872, in terms whereof the propounder of a will must prove its
execution by examining one or more attesting witnesses, where, however, the
validity of the will is challenged on the ground of fraud, coercion or undue
influence, the burden of proof would be on the caveator. In a case where the
will is surrounded by suspicious circumstances, it would not be treated as the
last testamentary disposition of the testator.
24.This Court in 2011 (3) CTC 433 (Govindaraj Vs. Ramadoss) held
that Section 90 of the Evidence Act is not applicable relating to proving of
Will, even if Will might be 30 years old and produced from proper custody.
For better appreciation, it is reproduced hereunder:
“At this juncture, I would like to point out that the
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latest and the recent decision of the Hon'ble Apex Court
reported in Bharpur Singh and others Shamsher Singh, 2009
(3) SCC 687 should necessarily be adhered into as under
Certain excerpts from it would run thus:
"19. The provisions of Section 90 of the Evidence Act,
1872 keeping in view the nature of proof required for proving
a Will have no application. A Will must be proved in terms of
the provisions of Section 63(c) of the Succession Act, 1925
and Section 68 of the Indian Evidence Act, 1872. In the event
of the provisions thereof cannot be complied with, the other
provisions contained therein, namely, Sections 69 and 70 of
the Evidence Act providing for exceptions in relating thereto
would be attracted. Compliance with statutory requirements
for proving an ordinary document is not sufficient, as Section
68 of the Evidence Act postulates that execution must be
proved by at least one of the attesting witnesses, if an
attesting witness is alive and subject to the process of the
Court and capable of giving evidence."
It is therefore crystal clear from the decision of the
Hon'ble Apex Court that Section 90 of the Indian Evidence
Act is not applicable relating to proving of the Will is
concerned; even though the Will like Ex.B4 might be of 30
years old and produced from proper custody, yet strictly in
accordance with Sections 68 and 69 of the Indian Evidence
Act, the Will should be proved.
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25.In this case, the Will Ex.B4 is not proved and also the Will
surrounded suspicious circumstances as stated by the trial Court in its
judgment in para – 25, 26, 27, 28 & 29 are acceptable.
26.In the absence of the Will dated 10.09.1950 Ex.B4, the legal heirs
of Kuppusamy Pillai are entitled to have equal shares in his properties after
his death. Therefore, the trial Court rightly decided and declared that the
plaintiffs are entitled to 17/24 shares in the B schedule properties. There is
no illegality in the judgment and decree of the trial Court. I find no valid
ground for interference and no merit in the appeal suit and the appeal suit is
liable to be dismissed. The judgment and decree of the trial Court is hereby
confirmed and the appeal suit is dismissed. No costs. Consequently, the
connected miscellaneous petition, if any, is closed.
Index/Internet: Yes / No
Speaking order: Yes/No 02.04.2025
sms
To
1.The Principal District Court, Cuddalore.
2.The Section Officer, VR Section High Court, Madras.
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V.SIVAGNANAM, J.
sms
Pre-delivery judgment made in
02.04.2025
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