Madras High Court
S.Arulanand (Died) vs Arockiamary on 24 April, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
AS.(MD)No.143 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 28.03.2025
Pronounced On : 24.04.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)No.143 of 2017
and
C.M.P.(MD)No.8404 of 2017
1.S.Arulanand (Died)
2.Sebasthiammal
3.Arockia Karna
4.Deva Sagaya Livins ... Appellants
(Appellants 2 to 4 are brought on record as Lrs of the deceased Sole
Appellant vide Court dated 24.02.2025 made in CMP.(MD)Nos.2888 to
2890 of 2025 in AS.(MD)No.143 of 2017)
Vs.
1.Arockiamary
2.Savariammal
Chinnammal (Died) ... Respondents
1/21
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AS.(MD)No.143 of 2017
PRAYER : First Appeal filed under Section 96 of the Code of Civil
Procedure against the Judgment and Decree dated 14.09.2016 passed in
O.S.No.124 of 2014 on the file of the learned Principal District Judge,
Trichirappalli.
For Appellants : Mr.P.Arun Jeyatram
For Respondents : Mr.M.Saravanan
JUDGMENT
(Judgment of this Court was delivered by M.JOTHIRAMAN J.)
The unsuccessful defendant has preferred the present appeal.
Originally, the plaintiffs 1 to 3 have filed a suit claiming ¾ share.
Pending suit, the third plaintiff died on 03.08.2015 and she was spinster,
then the plaintiffs seek 2/3 share in the suit properties and the defendant
is entitled 1/3 share. The Court below passed a preliminary decree for
partition of 2/3 share of the plaintiffs 1 and 2 items 3 & 4 in suit A
schedule and item 1 in B schedule. In respect of items 1 & 2 in A
schedule and items 2 and 3 in B schedule, the suit is dismissed. For the
sake of convenience, the parties are referred to as per their rank before
the trial Court.
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2.Brief case of the plaintiffs is as follows:-
The plaintiffs are the sisters of the defendant. One Anthoniammal
is their mother and Sebasthiyar is their father. The suit 'A' schedule
properties belonged to the mother Anthoniammal and she had been in
possession and enjoyment of the same till her death on 29.07.2003. The
suit 'B' schedule properties belongs to father Sebasthiyar and he had been
in possession and enjoyment of the same till his death on 03.12.2010.
The suit properties were purchased by their parents under sale deeds. He
died intestate leaving behind the plaintiffs and the defendant. The
parents had given portion of the income to the plaintiffs 1 and 2 from the
suit properties and third plaintiff was in the care and custody of them
since she was a spinster. The defendant is in possession of the suit
property and enjoying the entire income and he is bound to render
accounts in respect of the plaintiffs' share. On 17.03.2014 the plaintiffs
have issued a lawyer notice demanding partition. He received the same
and sent reply notice to the plaintiffs on 19.05.2014. Hence, the suit.
3.Brief case of the defendant is as follows:-
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After death of the parents, the defendant alone is in possession
and paying portion of the income to the third plaintiff as stated in the
Will executed by their father on 14.05.2010. During life time of his
father, he had sold the properties comprised in S.F.Nos.270/1, 271/6 in
'A' schedule on 19.05.2000 and another property in the same schedule in
S.F.No.274/3 also been sold by the plaintiffs, defendant and their father
through sale deed dated 19.11.2009. On 12.09.1996, their father had
sold property in S.F.Nos.270/7, 254/1 in 'B' schedule property. The
properties were sold by their father only to meet out the debts received at
the time of marriage of the plaintiffs 1 and 2. the suit is not maintainable
and the same is liable to be dismissed.
4.Based on the above pleadings, the trial Court has framed the issues and
recasted as follows:-
i)Whether the suit properties mentioned in the A
schedule are the ancestral property of Late Anthoniammal?
ii)Whether the suit properties mentioned in the 'B'
schedule are the ancestral property of Late Sabestian?
iii)Whether the Will dated 14.5.2010 executed by
Sebastian is true, genuine, valid and binding upon the
plaintiffs?
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iv)Whether some of properties have already been
disposed off and if so, they have to be deleted from the suit?
v)Whether the plaintiffs are entitled to 2/3rd share in
the suit properties?
vi)Whether the defendants are liable for rendition of
accounts?
vii)To what further relief the plaintiffs are entitled to?
On the side of the plaintiffs, the first plaintiff herself examined as P.W.1
and marked Ex.A1 to Ex.A11. On the side of the defendant, three
witnesses were examined as D.W.1 to D.W.3 and Ex.B1 to Ex.B5 were
marked.
5.Findings of the trial Court:-
The suit schedule properties are self acquired properties of
Anthoniammal and Sebasthiyar and not ancestral properties. Items 1 to 3
in 'A' schedule properties and items 2 and 3 in 'B' schedule properties
were not partitioned in a manner known to law. The Will relied by the
defendant is surrounded by suspicious circumstances. The propounder of
the Will, the defendant has not chosen to enter into witness box to depose
about the Wills Ex.B4 and Ex.B5.
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6.Point for determination in this appeal is that:-
i)Whether the Wills Ex.B4 and Ex.B5 executed by the Sebasthiyar
is true and genuine?
ii)Whether the plaintiffs are entitled to 2/3 share in the suit
properties?
7.The learned counsel appearing for the appellant / defendant
would submit that Ex.B4 and Ex.B5 Wills have been proved by
examining attesting witnesses D.W.2 and D.W.3 in a manner known to
law. It is not necessary that the propounder of the Will to come forward
to depose evidence, but his wife has deposed evidence as D.W.1 and the
same is not fatal of the case. He would submit that D.W.1 is none other
than the wife of the appellant / defendant and she has knowledge about
the execution of the Will and the impugned judgment and decree passed
by the Court below is un-sustainable in law.
8.The learned counsel appearing for the respondents / plaintiffs
would submit that the alleged Wills have not been proved in the manner
known to law. The propounder of the Will, defendant did not enter into
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witness box to depose evidence. The suit schedule properties are joint
family properties of Anthoniammal and Sebasthiyar and the respondents /
plaintiffs are entitled to have share.
9.We have considered the submissions made on either side and
perused the materials on record.
10.The relationship between the parties are admitted. The mother
of the appellant / defendant Anthoniammal died on 29.07.2003. The
father of the appellant / defendant Sebasthiyar died on 03.12.2010. The
plaintiffs and the defendant are legal heirs of the Anthoniammal and
Sebasthiyar. Ex.A1 is the sale deed dated 29.08.2008 stands in the name
of the Anthoniammal Ex.A3 patta passbook stands in the name of
Anthoniammal. Ex.A4 is the sale deed dated 30.09.1969 stands in the
name of Sebasthiyar. Ex.A5 patta passbook stands in the name of
Sebasthiyar.
11.According to the plaintiffs, suit 'A' schedule properties belongs
to their mother. Suit 'B' schedule properties belongs to their father and
both of them died intestate and therefore, as their legal heirs, they are
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entitled for equal share in the suit properties. On the other hand,
according to the defendant, some of the properties were sold by their
father in his life time and some of the properties were sold by the
plaintiffs and the defendant. The properties were sold out by their father
only to meet out the debt received at the time of marriage of the plaintiffs
1 and 2. Remaining items properties, the father settled in favour of the
defendant by way of Wills executed by the parents. In order to prove the
execution of the Wills, the wife of the defendant was examined as D.W.1.
She has deposed that her husband was not in a position to depose
evidence, in view of the medical complication due to old age. She would
depose that their mother-in-law and father-in-law have already sold some
items and remaining properties in item 4 in suit 'A' schedule, first item in
suit 'B' schedule are in possession and enjoyment of the defendant. She
further deposed the mother of the plaintiffs executed Will in Ex.B4 and
father also executed Will in Ex.B5 in favour of the defendant and after
death, the Wills came into force.
12.It is seen from the evidence that P.W.1 that she did not know
about the sale deeds executed by her parents. Ex.B1 sale deed executed
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by Sebasthiar with regard items 1 & 2 in suit 'B' schedule and Ex.B2 is
the sale deed executed by Anthoniammal with regard to items 1 & 2 suit
'A' schedule properties. Ex.B3 sale deed executed by Anthoniammal
with regard to item No.3 in 'A' schedule property. From Ex.B1 to Ex.B3
would go to show that items 1 to 3 in 'A' schedule properties and items 2
& 3 in 'B' schedule properties have already been sold out and they are not
available for partition. Perusal of Ex.A8 reply notice dated 19.05.2014
issued by the defendant wherein it has been stated that the defendant is in
possession and enjoyment of the suit schedule properties after demise of
his parents through Wills executed by his parents. Further it is also stated
that after demise of the parents, the Will came into force.
13.Ex.A8 is the reply notice dated 19.05.2014 issued by the
defendant, which reads as follows:-
1)Admittedly the schedule mentioned properties are
belongs to parents of my clients. The said Sebasthiar died
on 29/03/2010 and mother namely Anthoniammal W/o
Sebasthiar died on 29/03/2010 as stated in your notice Para
1 & 2,
2)Selvi Chinnammal has not married and now she is
in care custody of my client. After the parent's death the
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schedule mentioned properties are possession enjoyment of
my client. The said possession and enjoyment of the
schedule mentioned properties have come to by client
through the will executed by his parents.
3)After demise of the parents will have become
affected as per law the above said wills have been duly
attested according to the law the said facts have very much
known to your clients. The said facts have been suppressed
to you by your client.
4)The remaining facts stated in your notice are not
correct. After this notice your clients will file any suits the
same will be defended by my client at your clients cost.
In Ex.A8, there is no mention about the date of the Wills. In the written
statement, in paragraph No.6 it has been stated as hereunder:-
6.After demise of the parents of plaintiffs and
defendant the defendant alone is in possession of the
property is correct and paying portion of the income to the
third plaintiff as if now as stated in the Will. The said Will
have been given by the plaintiffs and the defendant father
namely Sabasthiyar on 14.05.2010. The said Will was
attested as per the law. After demise of the father of the
defendant the said Will has come to force. The said Will is
produced herewith and same be read as part and parcel of
this written statement.
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14.It is pertinent to mention that Section 68 of the Indian
Evidence Act, 1872 states as to how execution of the document required
by law to be attested has to be proved. The Will requires to be attested
by two witnesses. Therefore, atleast one of the attesting witnesses will
have to be examined to prove the execution of the Will. Section 69 of
the Indian Evidence Act, 1872 provides for situation if no attesting
witnesses can be found. In this case, the defendant had examined D.W.2
and D.W.3 to prove the execution of the Will. It is relevant to cite
judgment of the Hon'ble Supreme Court reported in 2025 IMSC 1, Leela
Vs. Murugantham, wherein it has been held that a Will must be proved
in terms of the legal mandates made the provisions of Section 63 of the
Indian Succession Act and Section 68 of the Indian Evidence Act.
15.It is relevant to refer Section 68 of the Indian Evidence Act,
which reads as follows:-
68.Proof of execution of document required by law
to be attested.––If a document is required by law to be
attested, it shall not be used as evidence until one attesting
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witness at least has been called for the purpose of proving
its execution, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving
evidence:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any document,
not being a will, which has been registered in accordance
with the provisions of the Indian Registration Act, 1908 (16
of 1908), unless its execution by the person by whom it
purports to have been executed is specifically denied.
16.It is relevant to refer Section 63 of the Indian Succession Act,
which reads as follows:-
63. Execution of unprivileged wills.—Every testator,
not being a soldier employed in an expedition or engaged in
actual warfare, [or an airman so employed or engaged,] or a
mariner at sea, shall execute his will according to the
following rules:—
(a) The testator shall sign or shall affix his mark to
the will, or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so placed
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that it shall appear that it was intended thereby to give effect
to the writing as a will.
(c) The will shall be attested by two or more
witnesses, each of whom has seen the testator sign or affix
his mark to the will or has seen some other person sign the
will, in the presence and by the direction of the testator, or
has received from the testator a personal acknowledgment of
his signature or mark, or of the signature of such other
person; and each of the witnesses shall sign the will in the
presence of the testator, but it shall not be necessary that
more than one witness be present at the same time, and no
particular form of attestation shall be necessary.
17.D.W.1 has deposed that Ex.B5 unregistered Will dated
14.05.2010 came to be executed by Sebastian in favour of the defendant
in respect of itms 2 and 3 in suit 'B' schedule properties. D.W.1 deposed
that the testators have clearly mentioned about spending money for
solemnizing marriage of the plaintiffs 1 and 2 and third plaintiff remains
unmarried and given instructions in the Will that the defendant has to
give 10 bags of paddy and required money for her maintenance. Ex.B4 is
the unregistered Will dated 14.08.1998 executed by Anthoniammal in
respect of item 4 in suit 'A' schedule properties. D.W.2 deposed that he
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had signed as second witness in the Will Ex.B4 along with Sebasthiyar
also signed as witness and he had witness the testator Anthoniammal
affixing her thumb impression in each page of the Will. In his cross-
examination, he deposed that he did not know the contents of the Will.
D.W.3 Savururajan has deposed that he signed as third witness in Ex.B4
Will. Anthoniammal and Sebasthiyar were present at the time of writing
Ex.B4 Will and as dictated by them, the scribe Arulanandam wrote the
Will and Anthoniammal affixed her thumb impression, wherein, D.W.2
signed as attesting witness and Arulanandam signed as scribe of the
witness. Similarly, D.W.2 and D.W.3 deposed that they have signed as
attesting witness Ex.B5 Will dated 14.05.2010. As per evidence of
D.W3, the Will has been written by Arulanandam in the presence of D.W.
2 and D.W.3 and after writing the Will, D.W.2 and D.W.3 have signed as
attestors and Arulanandam signed as scribe. But, D.W.2 has given
different version. He has deposed that Arulanandam had brought an
already written Will in which he signed as attesting witness.
18.It is pertinent to mention that Section 69 of the Indian
Evidence Act contains further requirements. The propounder must also
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prove that the signature of the person executing the document is in the
hand writing of that person. It must be noted that the propounder of the
Will, did not enter into the witness box. Evidences D.W.2 and D.W.3
absolutely insufficient to prove the execution of document. The
testimony of D.W.1 also cannot be taken into account. This is for more
than one reason. D.W.1 is the wife of the defendant and therefore, there
is a complete paucity of evidence in this regard. In the decision reported
in (2009) 7 MLJ 476 (R.Suburathinam and others Vs. T.Govindaraj),
wherein it has been held that Section 69 of the Indian Evidence Act,
contemplates not only proving the atleast one of the attesting witnesses'
signature is that of the witness's signature, but also proving that the
signature of the testator is that of him. The ratio laid down in the
aforesaid decision would squarely apply to the case on hand.
19.The non-examination of the propounder of the Will creates
doubt. The defendant has not proved the Wills in a manner known to law
and there are suspicions circumstances surrounding the Wills and the
same is not removed by the defendant. It is relevant to cite judgment of
the Hon'ble Supreme Court reported in 2023 (9) SCC 734, Meena
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Pradhan and Ors Vs. Kamla Pradhan and Another wherein held how to
prove the execution of Will, in this regard principles were summarised,
which are reproduced as here under:-
“…10.1. The court has to consider two aspects :
firstly, that the will is executed by the testator, and
secondly, that it was the last will executed by him;
10.2. It is not required to be proved with
mathematical accuracy, but the test of satisfaction of the
prudent mind has to be applied. 10.3. A will is required to
fulfil all the formalities required under Section 63 of the
Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the
will or it shall be signed by some other person in his
presence and by his direction and the said signature or
affixation shall show that it was intended to give effect to
the writing as a will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation is
necessary;
(c) Each of the attesting witnesses must have seen
the testator sign or affix his mark to the will or has seen
some other person sign the will, in the presence and by the
direction of the testator, or has received from the testator a
personal acknowledgment of such signatures;
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(d) Each of the attesting witnesses shall sign the
will in the presence of the testator, however, the presence of
all witnesses at the same time is not required;
10.4. For the purpose of proving the execution of
the will, at least one of the attesting witnesses, who is
alive, subject to the process of court, and capable of giving
evidence, shall be examined;
10.5. The attesting witness should speak not only
about the testator’s signatures but also that each of the
witnesses had signed the will in the presence of the
testator;
10.6. If one attesting witness can prove the
execution of the will, the examination of other attesting
witnesses can be dispensed with; 10.7. Where one attesting
witness examined to prove the will fails to prove its due
execution, then the other available attesting witness has to
be called to supplement his evidence;
10.8. Whenever there exists any suspicion as to the
execution of the will, it is the responsibility of the
propounder to remove all legitimate suspicions before it
can be accepted as the testator’s last will. In such cases,
the initial onus on the propounder becomes heavier;
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10.9. The test of judicial conscience has been
evolved for dealing with those cases where the execution of
the will is surrounded by suspicious circumstances. It
requires to consider factors such as awareness of the
testator as to the content as well as the consequences,
nature and effect of the dispositions in the will; sound,
certain and disposing state of mind and memory of the
testator at the time of execution; testator executed the will
while acting on his own free will;
10.10. One who alleges fraud, fabrication, undue
influence et cetera has to prove the same. However, even in
the absence of such allegations, if there are circumstances
giving rise to doubt, then it becomes the duty of the
propounder to dispel such suspicious circumstances by
giving a cogent and convincing explanation;
10.11. Suspicious circumstances must be “real,
germane and valid” and not merely “the fantasy of the
doubting mind [Shivakumar v. Sharanabasappa, (2021) 11
SCC 277] ”. Whether a particular feature would qualify as
“suspicious” would depend on the facts and circumstances
of each case. Any circumstance raising suspicion
legitimate in nature would qualify as a suspicious
circumstance, for example, a shaky signature, a feeble
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mind, an unfair and unjust disposition of property, the
propounder himself taking a leading part in the making of
the will under which he receives a substantial benefit, etc.”
20.The learned counsel appearing for the respondents / plaintiffs
would submit that if really Ex.B4 and Ex.B5 Wills came to be executed
by their parents, the defendant would have mentioned the date of the
execution in his reply notice Ex.A8. There is some force in this
contention. In the written statement, the defendant has mentioned only
Will executed by Sebasthiyar on 14.05.2010 and there is no mention
about the alleged Will executed by the Anthoniammal dated 14.08.1998.
Contradiction in the evidence of D.W.2 and D.W.3 and non-mentioning
of the date of the Will Ex.B4 in the written statement and non-
mentioning of the Will in reply notice-Ex.A8 are creating some
suspicious circumstances. Admittedly, the propounder has not entered
into the witness box. Though D.W.1, who is wife of the defendant
deposed that due to old age, her husband could not give evidence, is not
acceptable one. We are of the view that there is no reason to interfere
with the judgement and decree passed by the trial Court. The point is
answered accordingly.
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21.In the result, this first appeal is dismissed and the Judgment
and Decree dated 14.09.2016 passed in O.S.No.124 of 2014 on the file of
learned Principal District Judge, Trichirappalli is hereby confirmed.
There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
(G.R.S., J.) & (M.J.R., J.)
24.04.2025
NCC : Yes / No
Index : Yes / No
gns
To
The Principal District Judge, Trichirappalli
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G.R.SWAMINATHAN,J.
and
M.JOTHIRAMAN, J.
gns
Pre-Delivery Judgement made in
24.04.2025
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