Madras High Court
Venatesan vs Sampath on 17 April, 2025
AS.No.575 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 26.02.2025
PRONOUNCED ON : 17.04.2025
CORAM:
THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN
A.S.No.575 of 2018
Venatesan
... Appellant/1st defendant
-Vs-
1. Sampath
2. Rani
3. Unnamalai
4. Sasikala
5. Prema
... Respondents 1 to 5/plaintiffs
6. Krishnaveni
7. Vasanthi
... Respondent 6 & 7/Defendants 2 & 3
PRAYER: First Appeal filed under Section 96 of the Code of Civil
Procedure praying to set aside the decree and judgment passed by the
learned Principal District Judge, Vellore in O.S.No.33 of 2014 dated
07.04.2018.
1/13
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AS.No.575 of 2018
For Appellant : Mr.C.T.Mohan
Senior Counsel for Mr.R.Vijayaraghavan
For Respondents : Mr.T.S.Baskaran for R1 to R5
R6 & R7 – Served - No Appearance
*****
JUDGMENT
The instant first appeal is preferred by the first defendant against the
judgment and decree dated 07.04.2018 passed by the Principal District
Judge, Vellore. The plaintiffs and other defendants are arrayed as
respondents.
2. For the sake of convenience, the parties will be referred to
according to their litigative status before the Trial Court.
3. The brief facts which give rise to the instant First Appeal is that,
the suit property in plot No.5 in Kalinjur village originally belongs to one
Subramania Achari and Krishnaveni jointly, under a registered sale deed
dated 29.04.1975. The plaintiffs and the defendants 1 and 3 are the sisters
and brothers, and the 2nd defendant is the mother of all of them. The 2nd
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defendant Krishnaveni and her husband Subramania Achari jointly sold a
portion of an extent of 405 sq.ft on the south west corner of the suit
property to the 2nd plaintiff by virtue of a registered Sale Deed dated
13.10.1992. While so, their father died intestate on 30.05.2004. After that,
the 2nd defendant has sold her share being the part of the suit property to the
3rd defendant under registered a sale deed dated 27.05.2010. Therefore, the
suit property is the remaining property after the sale made by the 2nd
defendant to the 3rd defendant. It is the case of the plaintiffs that each one
of them are entitled for 1/8th share, whereas, the 1st defendant is disputing
the plaintiffs' claim by setting up a fabricated Will. Hence, the plaintiffs
have come forward with a suit for partition.
4. The said suit was resisted by the 1st defendant by contending that
his father Subramania Achari was a contractor and that this defendant used
to assist his father in his avocation and the construction in the suit property.
He further submitted that he has contributed substantially for the purchase
of the suit property and for construction. According to him, his mother the
2nd defendant Krishnaveni is only a name lender. It is his further
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submission that his father, Subramania Achari bequeathed his ½ share to
him by virtue of a Will dated 26.02.2004. He would further submit that
even in the Sale Deed executed by the 2nd defendant in favour of the 3rd
defendant, this Will has been referred to. Therefore, he prayed to dismiss
the suit.
5. Before the Trial Court, the plaintiffs marked 7 documents as
Exs.A1 to A7 and the defendants marked 2 documents as Exs.B1 and B2.
On behalf of the plaintiffs, two witnesses were examined as PW1 and PW2
and on behalf of the defendants, 5 witnesses were examined as DW1 to
DW5.
6. The Trial Court after having considered either side submissions,
framed the following issues:-
1. Whether the plaintiffs are entitled to partition of 5/8
shares in the suit properties?
2. Whether the plaintiffs are entitled to the relief of
permanent injunction?
3. Whether the 1st defendant is the absolute owner of the
properties in view of the Will dated 26.02.2004 executed
by his father?
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4. To what other relief the plaintiffs are entitled?
[Extracted as it is]
7. While answering the aboe issues, the Trial Court found that the
alleged Will which was said to have been executed by Subramania Achari
under Ex.B2 has not been proved in a manner known to law. As a sequitter,
the Trial Court decreed the suit as prayed for. Aggrieved with the said
finding, the first defendant has come up with the instant appeal.
8. Heard Mr.C.T.Mohan, learned Senior Counsel appearing for the
appellant, and Mr.T.S.Baskaran, learned counsel for the respondents 1 to 5.
9. Mr.C.T.Mohan, learned Senior Counsel for the appellant would
vehemently contend that when the attestor was not in a position to recollect
his memory, it is always open for the propounder to prove the Will as
provided under Section 71 of The Indian Evidence Act. The learned Senior
Counsel would further submit that since the Will in question is registered
one, it is attached with the presumption as contemplated under Section 114
of The Indian Evidence Act. Thus, he would contend that the findings
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rendered by the Trial Court that the Will has not been proved is contrary to
the settled legal principles. In support of his contention, he relied upon the
following judgments:-
1. Ajit Savant Majagavi Vs. State of Karnataka reported in
AIR 1997 SC 3255;
2. M.B.Ramesh (D) by LRs Vs. K.M.Veeraje Urs (D) by
Lrs. and others reported in AIR 2013 SC 2088.
10. Per contra, Mr.T.S.Baskaran, learned counsel for the respondents
1 to 5 would contend that there is a primordial duty cast upon the
propounder of the Will to dispel all the suspicious circumstances, and that it
is incumbent upon the propounder to discharge the burden as mandated
under Section 63 of the Indian Succession Act, which deals about the
execution of the unprivileged Will and it's attestation. But, in the case in
hand, the evidence of the so called attestor has not complied the conditions
stipulated under Section 63 of the Indian Succession Act. Accordingly,
would contend that the findings rendered by the Trial Court is in
accordance with law, which does not require any interference.
11. I have given my anxious consideration to either side submissions.
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12. It is not in dispute that the suit property absolutely belongs to
Subramania Achari. Now, the only point for determination is, whether
the Will executed by Subramania Achari under Ex.B2 dated 26.02.2004
is proved in a manner known to law. To prove the attestation, the
defendant examined the two attestors of the Will. The attestors are
DW4/Mr.Kalvikarasu and DW5/Damodaran. Since their nature of evidence
is important, I deem it appropriate to extract the same hereinbelow:-
“The evidence of DW4-Kalvikarasu:-
gp/rh/M/2 Mtzj;jpy; ehd; Kjy; rhl;rpahf ifbaGj;J
nghl;Ls;nsd;/ vd;Dld; jhnkhjud; vd;gtUk; ifbaGj;J
bra;Js;shh;/ fhl;gho rhh; gjpthsh; mYtyfj;jpw;F brd;W
ifbaGj;J nghl;nlhk;/ ehd;. vd;Dila ntiyahf rhh; gjpthsh;
mYtyfj;jpw;F nghndd;/ gj;jpuk; vGJgth; vd;dplk; ifbaGj;J
th';fpdhh;/ ehd; goj;Jg; ghh;f;ftpy;iy/ ifntiy bjhHpy; Tlj;jpy;
gzpg[hpe;J 2000j;jpy; Xa;t[ bgw;Wtpl;nld;/ nghh;nkdhf ntiy
ghh;j;njd;/ vd;id ifbaGj;J nghLk;go brhd;d vGj;jh; ahh; vd;W
bjhpahJ/ gjpt[ bra;j vd;Dila gj;jpuk; fpilf;fhjjhy; mof;fo rhh;
gjpthsh; mYtyfj;jpw;F nghntd;/ tptuk; bjhpahky;. XU gj;jpuj;jpy;
ifbaGj;J nghLtJ jtW vd;gJ bjhpahJ/ ifbaGj;J nghl; njjp
bjhpahJ/ 26/02/2004y; Rg;gpukzp Mr;rhhp. bt';fnlrDf;F capy;
vGjpdhh; vd;Wk;. mtiu vdf;F bjhpa[k; vd;Wk;. mjw;F jhd; rhl;rp
ifbaGj;J nghl;nld; vd;why; rhpay;y/ thjpfsplk; fhR
th';fpf;bfhz;L bgha; rhl;rp brhy;fpnwd; vd;why; rhpay;y/”
The evidence of DW5-Damodaran:-
ehd; gpsk;gh; bjhHpy; ghh;ff; pnwd;/ gp/rh/M/2 Mtzj;jpy; ehd;
ifbaGj;J nghl;Ls;nsd;/ fy;tpf;furd; vd;Dld; te;jhh;/
fy;tpf;furd; ifbaGj;J nghl;lgpwF vd;dplk; ifbaGj;J
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th';fpdhh;fs;/ fy;tpf;furDld; Jizf;fhf ehd; brd;nwd;/
fy;tpf;fuR ifbaGj;J nghl;ljhy;. ehd; nghl;nld;/ 26/02/2004y;
Rg;gpukzp Mr;rhhp mth; kfd; bt';fnlrDf;F capy; vGjpdhh;
vd;Wk;. mtiu vdf;F bjhpa[k; vd;Wk;. mjw;F jhd; rhl;rp
ifbaGj;J nghl;nld; vd;why; rhpay;y/ thjpfsplk; fhR
th';fpf;bfhz;L bgha; rhl;rp brhy;fpnwd; vd;why; rhpay;y/”
13. The harmonious reading of the above evidences do not fulfill any
of the ingredients contemplated under Section 63 of the Indian Succession
Act. There are no iota of ingredients to prove the animo attestandi. But,
the learned Senior Counsel appearing on behalf of the appellant would
contend that when the attestor could not recollect the execution of
document, the propounder is entitled to invoke Section 71 of the Indian
Evidence Act.
14. At this juncture, it is relevant to refer the judgement of the
Hon'ble Supreme Court in Jagadish Chand Sharma Vs. Narain Singh
Saini reported in (2015) 8 SCC 615, wherein, it deals about the trigger
point to invoke Section 71 of The Indian Evidence Act. For ready
reference, this Court deems it appropriate to extract paragraph 15:-
“57.1. Viewed in premise, Section 71 of the 1872 Act has to be
necessarily accorded a strict interpretation. The two contingencies
permitting the play of this provision, namely, denial or failure to
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recollect the execution by the attesting witness produced, thus a
fortiori has to be extended a meaning to ensure that the limited
liberty granted by Section 71 of the 1872 Act does not in any
manner efface or emasculate the essence and efficacy of Section
63 of the Act and Section 68 of the 1872 Act. The distinction
between failure on the part of an attesting witness to prove the
execution and attestation of a will and his or her denial of the said
event or failure to recollect the same, has to be essentially
maintained. Any unwarranted indulgence, permitting extra liberal
flexibility to these two stipulations, would render the predication of
Section 63 of the Act and Section 68 of the 1872 Act, otiose. The
propounder can be initiated to the benefit of Section 71 of the 1872
Act only if the attesting witness/witnesses, who is/are alive and is/are
produced and in clear terms either denies/deny the execution of the
document or cannot recollect the said incident. Not only, this
witness/witnesses has/have to be credible and impartial, the
evidence adduced ought to demonstrate unhesitant denial of the
execution of the document or authenticate real forgetfulness of
such fact. If the testimony evinces a casual account of the
execution and attestation of the document disregardful of truth,
and thereby fails to prove these two essentials as per law, the
propounder cannot be permitted to adduce other evidence under
cover of Section 71 of the 1872 Act. Such a sanction would not only
be incompatible with the scheme of Section 63 of the Act read with
Section 68 of the 1872 Act but also would be extinctive of the
paramountcy and sacrosanctity thereof, a consequence, not
legislatively intended. If the evidence of the witnesses produced by
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the propounder is inherently worthless and lacking in credibility,
Section 71 of the 1872 Act cannot be invoked to bail him (the
propounder) out of the situation to facilitate a roving pursuit. In
absence of any touch of truthfulness and genuineness in the overall
approach, this provision, which is not a substitute of Section 63(c) of
the Act and Section 68 of the 1872 Act, cannot be invoked to
supplement such failed speculative endeavour.”
[Emphasis supplied by this Court]
15. In yet another judgment of the Hon'ble Supreme Court in Benga
Behera and another Vs. Braja Kishore Nanda and others reported in
(2007) 9 SCC 728, held as follows:-
26. As indicated hereinbefore, PW 9 does not deny the
execution. His statement, thus, does not satisfy the requirements of
Section 63(c) of the Succession Act. While appreciating evidence of a
witness, we cannot go beyond the same and while doing so, we
cannot raise a legal fiction that he must have done so only because
the first respondent had cross-examined him on certain issues. By
cross-examining one's own witness, the effect of his statement in
examination-in-chief in a case of this nature cannot be ignored.
Whether Section 71 of the Evidence Act was applicable in the facts
of the present case must be found out upon reading his evidence in
its entirety.”
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16. According to the above precedent, Section 71 will come into
operation only when all the witnesses deny or do not recollect the execution
of the document. But, the attestors DW4 and DW5, spoke about the
signature of the testator, still they did not speak as to whether they have
seen the testator while signing the Will and vise versa. Accordingly, their
evidence do not disclose the ingredients as contemplated under Section 63
of the Indian Succession Act. Furthermore, the so called attestors are
admittedly neither known nor acquainted with the testator and they were
only a passers by. These aspects have been elaborately gone by the learned
Trial Judge while deciding this suit. As such, in the case in hand, the
factum of attestation is not proved.
17. Further, there are suspicious circumstances in the execution of the
Will, such as the alleged attestor was unknown to the testator, and not in a
position to speak about attestation. It is in this background, there is a duty
cast upon the propounder to dispel those legitimate suspicious
circumstances. But in the case in hand, he miserably failed to dispel these
legitimate suspicious circumstances.
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18. At this juncture, the learned Senior Counsel would rely upon the
judgment of the Hon'ble Supreme Court in M.B.Ramesh's case [cited
supra], urging this Court to invoke Section 71 of the Indian Evidence Act,
and the above judgment deals about the contours of application of Section
71 of the Indian Evidence Act. But, in the case in hand, as discussed
hereinabove, no occasion arises for this Court to invoke Section 71 of the
Indian Evidence Act. Further, the other judgment in Ajit Savant's case
[cited supra] is also on the above principles. Therefore, I am of the
indubitable opinion that the propounder has miserably failed to prove the
Will. Thus, I do not find any infirmity in the order of the Trial Court and
accordingly, the point is decided in favour of the plaintiff.
19. In the result, this Appeal Suit stands dismissed. There shall be no
order as to costs.
17.04.2025
Index : Yes/No
Speaking Order/Non-Speaking Order
NCC : Yes/No
kmi
To
The Principal District Court,
Vellore.
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C.KUMARAPPAN, J
kmi
17.04.2025
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