Madras High Court

Annamuthu vs Dhanush (Died) on 28 April, 2025

                                                                                               A.S(MD)No.187 of 2016

                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
                                          Reserved on               : 02.04.2025
                                        Pronounced on               : 28 .04.2025
                                                           CORAM:

                                  THE HONOURABLE MR.JUSTICE P.VADAMALAI

                                               A.S(MD)No.187 of 2016
                                                       and
                                             C.M.P(MD)No.11712 of 2016

            Annamuthu                                                         ... Appellant/1st Plaintiff


                                                               Vs.

            Dhanush (Died)
            1.Durairaj                                                        ...1st Respondent/2nd Defendant
            2.Reginamary                                                      ...2nd Respondent/2nd Plaintiff
            (Second Appellant is transposed as 2nd Respondent vide
            Court order, dated 12.04.2022 made in CMP(MD)No.
            2993 of 2022 in A.S(MD)No.187 of 2016)


            PRAYER :- This Appeal Suit is filed under Section 96 of the Civil Procedure Code,
            to call for the records and set aside the judgment and decree dated 29.02.2016 in
            O.S.No.46 of 2015 on the file of the District Judge, Sivagangai and allow this appeal
            with costs throughout insofar as the judgment and decree is against the plaintiffs.


                                    For Appellants         : Mr.H.Lakshmi Shankar
                                    For R1                 : Mr.S.Parthasarathy
                                    For R2                 : No Appearance



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                                                                                        A.S(MD)No.187 of 2016

                                                       JUDGMENT

This Appeal is directed against the judgment and decree dated 29.02.2016

made in O.S.No.46 of 2015 on the file of the learned District Judge, Sivagangai.

2. The appellant is the first plaintiff and the second respondent is the second

plaintiff in O.S.No.46 of 2015 on the file of the learned District Judge, Sivagangai.

The first respondent is the second defendant and one Danush Nadar was the first

defendant in that suit. The plaintiffs filed the suit for partition of allotment of their

2/4 share in the suit A and B schedule properties and for declaration that the

documents registered under document No.931/2001, dated 10.09.2001 and

1243/2009, dated 07.08.2019 are null and void.

3. For the sake of convenience, the parties are referred to as per their rank

before the trial Court.

4. The brief facts of the plaintiffs' case:

It is the contention of the plaintiffs that the suit A schedule consisting 14 items

of immovable properties and the B schedule consisting five items of movable golden

jewels. The suit properties belonged to the first defendant, who is the father of the

plaintiffs. The properties were in joint enjoyment of the first defendant and his wife,

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Sivathiammal. The suit item Nos.5, 6, 7, 8 and 13 properties were purchased out of

the income derived from the other properties of the mother, Sivanthiammal. She died

on 27.12.2012. The plaintiffs and the second defendant are 1st defendant?'s children.

The second defendant got married in 1968 and thereafter he left from the family of

the plaintiffs and has been living separately with his wife in his father-in-law's house.

He worked as a teacher and after retirement, he is living in Mudaveli village.

The plaintiff already filed a suit in O.S.No.71 of 2009 for declaration that the suit

properties are the gifted properties of his mother during her marriage, but the same

was dismissed on 23.04.2013. The dismissal of the earlier suit will not operate as res

judicata to the present suit. The deeds under document No.931/2001, dated

10.09.2001 and document No.1243/2009, dated 07.08.2009 executed by the first

defendant and the deceased Sivathiammal are null and void in respect of plaintiff?s

2/4 share since the parties are Christians they are entitled to equal share in the suit

properties as per provisions of Section 42 of the Indian Succession Act, 1925.

Hence, the plaintiffs filed the suit for partition of their 2/4 share in the suit properties

and for a declaration that the deeds, dated 01.09.2001 and 07.08.2009, are null and

void.

5.The brief facts of the defendants' case:

The defendants in their written statement contended that the suit A schedule

item Nos.1 to 4, 9, 11 and 12 properties are absolute properties of the 1st defendant.

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The A schedule suit item Nos. 5 to 8 and 13 are exclusive properties of

Sivanthiammal, who was the wife of the first defendant and mother of the plaintiffs

and the 2nd defendant. The suit A schedule item Nos.1 to 14 properties were

described in the earlier suit in O.S.No.71 of 2009. In addition, the first defendant has

owned properties in S.Nos.52/16 and 52/8. Further items, 15 to 17 properties, were

also included pending suit. The first defendant executed registered gift deed dated

10.09.2001 in respect of items 1 to 4 and he executed a registered Will, dated

10.09.2001, in respect of items Nos.9,11, 12, properties and also properties in

S.Nos.15/1 and 15/2 in favour of the second defendant. The gift deed and Will were

marked as Ex.B.10 and Ex.B.13 in the earlier suit. The mother, Sivathiammal,

executed a registered gift deed in favour of his son 2nd defendant, in respect of items

Nos.6 and 7 of A schedule. She also executed registered Will, dated 07.08.2009, in

respect of item Nos.5 and 8 of A schedule in favour of the second defendant. During

the pendency of the suit, the father/1st defendant died on 08.05.2015. Their mother,

Sivanthiammal, died on 27.12.2012. After their death, the Will came into force.

The item Nos.10, 13, 14 and 16 of A schedule are not properties of the defendant's

family. The B schedule jewels are not available with this defendant. The mother had

already handed over them to the plaintiffs. The only available property is item No.17

of A schedule in which the plaintiffs are entitled to a share. In respect of all other

items, the suit is liable to be dismissed.

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6. The trial Court framed the following issues upon the pleadings of both parties.

(1) Whether the plaintiffs are entitled to the relief of partition as prayed for?

(2)Whether the plaintiffs are entitled to the relief of declaration that document No.931/2001, dated 10.09.2001 is null and void?

(3) Whether the plaintiffs are entitled to the relief of declaration that document No.1243/2009, dated

07.08.2009 is null and void?

(4) Whether the suit is hit by res judicata as the dismissal of earlier suit in O.S.No.79 of 2009 (5) To what other relief the plaintiff is entitled to?

The trial Court framed additional issues on 16.11.2015 (1) Whether the Will dated 10.01.2001 is legally valid?

(2) Whether the suit A schedule item Nos.9, 11, 12, 15-1, 15-2 are exclusive properties of the defendant as per Will?

(3) Whether the suit A schedule items 10, 13,14 and 16 are the common properties of family?

(4) Whether the plaintiffs have right to claim share in suit A schedule 10, 13, 14, 15 and 16 ?

The trial Court also framed the following additional issues on 14.12.2015 (1) Whether the Will, dated 10.09.2001 is true and valid?

(2) Whether the plaintiffs are entitled to share in the property covered under the Will dated 10.09.2001 and the two settlement deeds?

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7. Before the trial Court, the first plaintiff was examined herself as P.W.1 and

also examined one Shanthimary and Gopal as P.W.2 & P.W.3. and marked Ex.A.1 to

Ex.A.6. On the defendants side, the defendants were examined as D.W.1 and D.W.2

and 25 exhibits were marked as Ex.B.1 to Ex.B25. In addition, witness side exhibits

Ex.X.1 to Ex.X.3 were marked.

8. On appreciation of oral and documentary evidences adduced on either side

and also considering the submissions made on behalf of the parties, the trial Court has

held that the plaintiff is entitled to 1/3 share in the properties except the A schedule

1 to 9, 11, 12, 15-1 and 15-2 and passed preliminary decree to that effect and the suit

has been dismissed in respect A schedule 1 to 9, 11, 12, 15-1 and 15-2 and B schedule

and in respect of other reliefs by its judgment and preliminary decree, dated

29.02.2016.

9. Challenging the judgment and decree of the trial Court, dated 29.02.2016,

the plaintiffs have moved this Court by way of this appeal suit. During the pendency

of the appeal, the 2nd appellant/2nd plaintiff was transposed as 2nd respondent as she

was not willing to proceed the appeal along with the 1st appellant.

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10. The counsel for both the appellant and the 1 st respondent have argued at

length by relying upon some Judgments which will be referred in this judgment at

appropriate places.

11. From the pleadings of both parties and also from the arguments of both

sides, the following points have arisen for consideration in this appeal.

(1) Whether the Ex.B.12 settlement deed dated 12.09.2001 and Ex.B.13 settlement deed dated 07.08.2009 are legally valid ?

(2) Whether the Ex.B.14 Will dated 12.09.2001 and Ex.B.15 Will dated 07.08.2009 are legally valid ?

(3) Whether the B schedule jewels are available for partition?

(4) Whether plaintiff is entitled to the reliefs of partition in the suit properties and of declaration that the settlement deeds and Wills are null and void as prayed for?

12. The learned counsel for the appellant/1st plaintiff has argued that the suit

properties belonged to the first defendant Dhanush Nadar and his wife, Sivathiammal.

The plaintiffs 1 and 2 and the 2nd defendant are their children. The 2nd defendant was

working as teacher and after marriage, he left the family and has been living along

with his father-in-law in his house. The suit properties were orally given to the

plaintiff at the time of their marriage and so they filed an earlier suit in O.S.No.71 of

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2009 for their title, but the suit was dismissed on 23.04.2013. While the above suit

was pending, the plaintiffs learnt about the alleged settlement deeds and Wills

executed by their father Dhanush Nadar and mother Sivathiammal in favour of the

2nd defendant. The settlement deeds and Wills were fraudulently created by the

2nd defendant and hence, the plaintiff challenged the same. The attesting witnesses to

the documents were not examined to prove the execution and registration. Without

propounding or proving the will according to the law, the Wills cannot be relied for

any purpose. Even though the father/1st defendant was examined as D.W.1, he was

unable to identify his own signature/thumb impression and of his wife, as well as the

attesting witnesses. Particularly, the mental capacity and voluntariness of the

executors were not at all proved while executing the settlement deed and Wills.

The mother, Sivathiammal being an illiterate, the burden of proof is heavy.

The learned counsel further pointed out the admission of DW1 to the effect that

the 2nd defendant alone was the instrumental in preparing those documents.

The learned counsel has relied on the citations reported in 1997 (3) Law Weekly 673

and (2002) 7 SCC 1 (Veena Singh /v/s District Registrar). The learned counsel

went on to explain the suspicious circumstances surrounding the execution of the

documents. The father alleged to have executed settlement deed and Will in the year

2001, but he deposed that ?ehd; vGjpf; bfhLj;j capy;gj;jpuk; eilKiw;fF

tutpy;iy/Rkhh; 5 tUlq;fSf;F Kd;g[ vd; kfDf;F jhdg;gj;jpuk;

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vGjpf;bfhLj;njd;.? The plaintiffs and defendants are Christians and as per

Christian Law thre is no joint or ancestral properties. But, DW1 stated in Ex.B.14 that

he derived share from his ancestral properties. The second defendant has not been

living along with parents. The father gave evidence as “cly;eyk; ghjpf;Fk; Kd;g[ tiu ehDk;> vd; kidtp rptj;jp mk;khSk; fiyf;Fsk; fpuhkj;jpy; jdpahf

trpj;J te;njhk;. vd; kfd; Jiuuh$; Mjpfhyk; Kjy; vd;ida[k; vd;

kidtpiaa[k; jd;Dld; te;J trpf;FkhW Tg;gpg;llhh; Mdhy; ehd;

jdpahf ,Ug;gjhfnt brhy;yp ehDk; vd; kidtpa[k; fiyf;Fsk; fpuhkj;jpy;

vd;Dila tPl;oy; trpj;J te;njhk;…. vd; kfd; jpUkzk; bra;j fhyj;jpy; bgz;

tPl;oy; ,Ue;J brhj;J bfhLj;jhh;fs;. mjdhy; vd; kfd; tPl;nlhL

khg;gps;isahf brd;whh;…. ehq;fs; xd;whf ,Ue;j fhyj;jpy; md;dKj;J> bu

$pdhnkhp kw;Wk; vd; kidtp midtUk; xd;whf tptrhak; bra;J te;njhk;....”.

The 2nd defendant as DW1 admitted in his evidence that “ehd; 1972y; Mrphpah;

gzpf;F brd;nwd;. 30.06.2007y; gzp Xa;t[ bgw;nwd;. 2007k; tUlj;jpw;F

Kd;g[ tiu Mrphpauhf gzpahw;wpwajhy; gukf;Foapy; ,Ue;njd;. 2007f;F gpwF

Klntypapy; trpj;J tUfpnwd;....”. Since the 2nd defendant was all along living

separately there is no justification to execute settlement deed and Will by parents in

respect of almost all the properties in his favour. The scribe as well as other

independent witness were not examined to prove the same. The 1st defendant alone

was examined and even he deposed that the proof affidavit and documents were

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prepared on instructions of his son/2 nd defendant. The 2nd defendant as DW2 admits

his presence and participation during execution and registration of those settlement

deeds and Wills. In support he relied upon the reported judgment in AIR 1959 SC

443 (H. Venkatachala Iyengar vs. B.N. Thimmajamma & Others) and 1997 (3)

Law Weekly 673 (Srinivasa Gounder v. K.Venkatesan). The trial Court has not

considered and appreciated all the evidences available in the case thoroughly and

without any proper discussion, passed the impugned judgment. The mother already

died and the father died during pendency of present suit. The contention of

defendants that the suit was filed by wrongly relying on section 42 of Indian

Succession Act has no significance now. The settlement deeds and Wills are not

legally proved. So, the partition is now opened. It is settled principal that in civil

cases an appeal is continuation of suit as reported in 1975 (1) SCC 770 (Pasupuleti

Venkateswarlu vs The Motor & General Traders). Therefore, the plaintiffs are

entitled to equal share in the suit properties and hence, the appeal suit may be

allowed.

13. Per contra, the learned counsel for the 1st respondent/2nd defendant has

vehemently argued that the plaintiffs admitted that the suit properties belonged to

Dhanush Nadar and Sivathiammal, who are parents of the parties. The parties are

Christians and so they are governed by the personal law of Christians. The father

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Dhanush Nadar executed a registered settlement deed dated 10.09.2001 in respect of

items 1 to 4 of A schedule & lands in S.Nos.52/16 and 52/8 and the mother

Sivathiammal executed a registered settlement deed, dated 07.08.2009 in respect of

items 6 and 7 of A schedule in favour of their son, the 2nd defendant/1st respondent

herein. The settlement deeds were marked as Ex.A.4 =Ex.B.12 and Ex.A.4 = Ex.B.13.

The settlee namely the 2nd defendant accepted the said settlements and based on the

same, the 2nd defendant mutated the revenue records and marked the revenue records

as Ex.B.8, Ex.B.9 and Ex.B.16 to Ex.B.23. Thereafter, the second defendant has

conveyed properties in S.Nos.52/16 and 52/8 to the appellant/1 st plaintiff by virtue of

registered sale deed/Ex.B.11, dated 12.08.2002, the first plaintiff as P.W.1 has also

admitted the same in her evidence. But, the plaintiff has not shown those properties in

the plaint. So, the settlement deeds are not challenged by the plaintiff and the same

were acted upon. In respect of items 5 and 8 of A schedule the mother Sivathiammal

executed a registered Will/Ex.B.15, dated 07.08.2009 and in respect of items 9, 11,

12, 15(1) and 15(2) of A schedule the father Dhanush Nadar/1 st defendant executed

registered Will/Ex.B.14 in favour of the son 2nd defendant herein. The father/1st

defendant has examined himself as D.W.1 and he has clearly deposed and admitted in

his evidence that he executed Ex.B.14 registered Will in favour of his son

2nd defendant and that his wife Sivathiammal executed Ex.B.15 - Will in favour of

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her son 2nd defendant herein. D.W.1 is the witness to the Will executed by his wife.

So, as per Section 70 of the Indian Evidence Act, the very execution of Wills have

been proved by clear admission of the testator, and hence, the attesttors to the Wills

need not be examined to prove further. The plaintiff has not specifically pleaded any

suspicious circumstances surrounded to the Will and so, Section 68 of the Act would

not attract to the facts of this case. Moreover, in the earlier suit in O.S.No.71 of 2009

the plaintiffs took a stand that the suit properties were given by the parents as oral gift

at the time of their marriage and in that suit also the defendants specifically denied

that the suit properties were conveyed to the 2nd defendant through registered

settlement deeds and registered Wills. The earlier suit was dismissed on 23.04.2013

as pleaded in the plaint. The plaintiff admitted the above facts. The dismissal earlier

suit would operate as Res Judicata. But, now they are claiming share in the suit

properties as per section 42 of Indian Succession Act by pleading that they can entitle

equal share in the properties of parents even during their life time. The version of the

plaintiff is totally wrong. Hence, the suit is affected by Forum Shopping, which

shows the abuse of the legal process on the part of the plaintiff. The plaintiffs have

no case at all in respect of suit item Nos.1 to 9 and 15(1) & 15(2) of A schedule.

The 2nd plaintiff, who is sister of the plaintiff and the 2nd defendant, has not come

forward to proceed the appeal and hence, she has been transposed as 2 nd respondent

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during pendency of appeal, which is also fatal to the case of the 1st plaintiff.

Mere presence of the 2nd defendant in registration office and even the alleged

participation in preparing and registration of the documents will not affect its

validity .The 1st respondent/2nd defendant has not claimed any right over the item

Nos.10,13, 14 and 16 of A sehedule and also the defendant is not in possession of the

jewels as described in B schedule and the jewels were gifted to the plaintiffs by the

mother herself during her life time. Moreover, the plaintiffs themselves admitted that

they alone resided with their parents for certain period. The plaintiff has also not

proved the availability of the jewels with the defendant except the photograph of their

mother which is not a conclusive proof. To conclude he submitted that, the findings

of the trial court are well reasoned and request this court to dismiss the appeal.

14. In support of his arguments, the learned counsel for the 1st respondent/2nd

defendant has relied on the following rulings:

(1) 1998 (3) MLJ 361 (S.Kaliyammal and Ors. vs. K.Palaniammal and Ors.) (2) 2000 (II) CTC 184 (K.Andi Reddiar vs. Ovu Ammal and 5 Ors.) (3) AIR 2005 SC 4362 (Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors.) (4) 2006 (2) CTC 43 (P.Rama Srinivasa Rao vs. Dr.N.Ragavan)

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(5) 2015(1) Law Weekly 522 (Leela Rajagopal & Ors vs. Kamala Menon Cocharan and Ors.) (6) 2017 (2) Law Weekly 312 (Shahida Begum vs. Ramiza Bi & Ors.) (7) 2023 (3) MWN 589 (Sagunthala Devi (Died) Subathra Priyadharshini and Anr. vs. R.Usharani)

15. Points 1 and 2:

I have carefully considered the arguments of both sides and the rulings relied

on either side along with material records of the case. The relationship between the

parties and the suit properties were belonged to their parents Dhanush Nadar and

Sivathiammal, were not disputed. It is also evidenced that father Dhanush Nadar died

on 08.05.2015 and mother Sivathiammal died on 27.12.2012 as seen from the records.

16. It is the case of the plaintiffs that they are entitled to equal share in the suit

properties as their parents now no more. It is the definite case of the 2nd defendant

that his father Dhanush Nadar and mother Sivathiammal have executed registered

settlement deeds in respect of suit item nos.1 to 4, 6, 7 and properties in S.Nos.52 of

16 and 52 of 8 in his favour. The settlement deeds were marked as Ex.B.12 and

Ex.B.13, the copies of the same were marked as Ex.A.4 and Ex.A.5. It is also the

definite case of the 2nd defendant that he accepted the settlement deeds and on that

basis he mutated the revenue records. The mutation has been established by the

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second defendant as seen from revenue records marked as Ex.B.8, Ex.B.9 and

Ex.B.16 to Ex.B.23. All these facts were not specifically denied by the plaintiffs. As

argued by the defendant the plaintiff has not pleaded any suspicious circumstances of

the Wills/gift deeds and let in evidence questioning the execution and attestation of

those documents and the plaintiffs only challenged the propriety of parents in the

matter of executing the said documents. On perusal of records, the gift deeds Ex B12,

and Ex.B.13, the Wills Ex.B.14 and Ex.B.15 are registered Gift deeds/Wills and no

attestor to the Ex.B.14 Will was examined. Of course, it is a settled proposition of law

that mere registration of a Gift deed/Will does not automatically validate it.

To validate the Gift deed/Will, they must be proved in accordance with the provisions

of Indian Succession Act and the Indian Evidence Act. At the same time, if the

testator, who made the Gift/Will, admits the execution of the Gift/ Will in Court of

law much less entered into witness box and gave evidence admitting the execution of

Gift/Will, the admission is sufficient proof of execution, even if the Gift deed/Will is

required to be attested, as per Section 70 of the Indian Evidence Act. Section 70 is

providing an alternative way to prove the execution of a Will, especially when the

testator admitted the same in a legal proceeding, which would be useful when the

Will is registered one.

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17. The learned Single Judge of this Court rendered decision of Will as per

Section 70 of Indian Evidence Act in the judgment passed in S.A.(MD) Nos.589 to

591 of 2020, dated 01.03.2022 following the decision of the Hon?ble Supreme Court.

The relevant portion in paragraph Nos.29 and 30 are extracted hereunder.

29. The judgment of the Hon'ble Division Bench was referred to and followed by a learned single Judge of this Court in 1991 (II) MLJ page 478 in para 4 as held as follows:

?4. The next question will be whether the admission of execution by the executant before the Sub Registrar would amount to an admission within the meaning of Section 70 of the Indian Evidence Act. It has been held by a Division Bench of this Court in Davood Rowther v. Ramanathan MANU/TN/0331/1937:AIR1938 Mad 43, that for the purpose of Section 70 of the Indian Evidence Act, admission should have been made either in the pleading or during the course of the trial of the suit in which the question arose for consideration. The admission, even if it had been made before the Sub-

Registrar at the time of registration will not fall within Section 70 as it is not an admission made in the course of the suit........?

30. In view of the Division Bench judgment and the judgment of learned single Judge, it is evident that Section 70 of the Indian Evidence Act is applicable to the Wills also. In case the testator has admitted the execution of the Will in the course of pleading or during the course of trial of a suit, the same can be treated as sufficient proof of the Will under Section 70 of the Indian Evidence Act. In the present case, the father of the plaintiff, namely, Pitchai @

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Narayanasamy has admitted the execution of Exhibit A. 4-Will in his written statement filed in O.S.No.1249 of 2004. Hence, the same can be treated as sufficient proof of Exhibit A.4-Will and the non-examination of the attestors as contemplated under Section 68 of the Indian Evidence Act will not be fatal to the propounder of the Will.

18. In this case, D.W.1 the 1st defendant Dhanush Nadar (now died) has given

evidence as follows that “rpy brhj;Jf;fis bghWj;J vd; kidtp vd; kfd;

Jiuuh$pw;F jhdg;gj;jpuk; vGjpf; bfhLj;Js;shh;. Rpy brhj;Jf;fis bghWj;J

vd; kfDf;F capy; vGjpf;bfhLj;Js;shh;. nkw;go ,uz;L gj;jpuq;fSk; vd;

kidtp 5 Mz;LfSf;F Kd;g[ vGjp itj;jhh;. me;j gj;jpuq;fs; vGjp

gjptjw;F vd; kidtp> ehd; kw;Wk; fiyf;Fsk; fpuhkj;ij nrh;e;j mHfd;

kfd; kiyr;rhkp Mfpnahh; ,isahd;Fo brd;nwhk;. gj;jpuf;fhuhplk; ehDk;> vd;

kidtpa[k; tptuk; brhd;ndhk;. gj;jpuq;fs; gjpt[ MgPrpy; gjpt[ bra;ag;gl;ld.....”.

?On perusal of the evidence of D.W.1, the 1st defendant Dhanush Nadar (now died) it

is very clear that the settlement deeds Ex.B.12 and Ex.B.13 were executed in favour

of his son the 2nd defendant herein. His admission itself clearly proved the due

execution of Ex.B.12 and Ex.B.13.

19. Moreover, the 1st plaintiff as P.W.1, deposed and admitted as follows:

? “ehd; Fwpg;gpl;Ls;s nkny fz;l brhj;Jf;fis vd; rnfhjuh; Jiuuh$;

vdf;F fpiuak; bfhLj;jhh;. 12.03.2008 njjpapl;L gjpt[f; fpiuakhf vGjpf;

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bfhLj;jhh;. ehd; fpiuak; thq;fpa brhj;Jf;fis fpiua fhyk; Kjy; ehd;jhd;

mDgtpj;J tUfpd;nwd;. vd; fpiuagj;jpuj;jpd; rhh;gjpthsh; rhd;wpl;l efy;

gp.th.rh.M.11 MFk;. ...... gp.th.rh.M.11 Mtzj;jpy; fz;l 2 brhj;Jf;fSk; vd;

rnfhjuh;fSf;F vd; jfg;gdhh; vGjpf; bfhLj;j jhd brl;oy;bkd;l; :Kyk;

fpilj;jjhf Fwpg;gpl;L fpiuak; bra;jpUf;fpnwhk;.....”. ?From the above evidence,

it is very clear that the father and mother have executed Ex.B.12 and Ex.B.13

registered settlement deeds in favour of the second defendant in respect of aforesaid

A schedule properties. The plaintiffs have also admitted the settlement deeds and they

have not challenged the same even though they were disclosed in her earlier suit in

O.S.No.71 of 2009. Even in this suit the plaintiffs have not specifically pleaded any

undue influence, coercion or fraud in executing those documents except pleading that

they were registered to deceive the plaintiffs. Therefore, this Court holds that the

settlement deeds Ex.A.12 and Ex.B.13 are legally valid and were acted upon.

20. Similarly The next contention of the plaintiff/appellant is that even though

the Wills are registered one, they are not proved by the 1st respondent/2nd defendant

by examining anyone of the attesttors to the Wills as contemplated U/s.68 of the

Indian Evidence Act. But the point is that the very executor of the Will has deposed

before the Court of law admitting the execution of Will Ex.B.14 by himself and what

else further needed to prove about the due execution and his mental capacity,

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particularly he withstand cross examination also. Further as attestor in Ex.B.15 - Will

executed by his wife in favour of 2nd defendant he deposed that he saw the execution

by his wife. Hence, as per Section 70 and 68 of the Evidence Act the Wills have been

duly proved.

21. Further the argument of the defendants that in the earlier suit in

O.S.No.71 of 2009 filed by the plaintiffs they have specifically pleaded about the

execution of Wills by the father and mother and admittedly, the mother

Sivathiayammal died during the pendency of that suit in O.S.No.71 of 2009, and

eventhen the plaintiffs have not taken sincere steps to question the validity of the Will

in that suit itself immediately after the death of mother. The argument of the

appellant/1st plaintiff that the trial Court just discussed in two paragraphs regarding

settlement deeds and Wills has no substances. What is important is the quality,

appreciation of evidence and not the length of the judgment. The alleged

contradictions need not be discussed at length as expected by the plaintiffs' side.

The civil cases are based on documentary in nature. The documents are required to be

proved as required by law. In this case the Wills are clearly proved by the 2 nd

defendant as contemplated by the provisions of Indian Evidence Act. Mere presence

of the beneficiary in the registration office would not be helpful to the plaintiffs case,

admittedly the father of the parties is aged one and he went to registrar office along

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with his own son is nature and the same could not be doubted.

22. The transposition of 2nd appellant /2nd plaintiff as 2nd respondent in this

appeal is also to be looked into as she does not want to proceed the appeal, which

implies he supports the case of the 2nd defendant. Hence, the rulings relied on

defendant side are applicable to the facts of this case and the rulings relied on by the

plaintiff side are not applicable to this case. Therefore, this Court holds that the Wills

Ex.B.14 and Ex.B.15 are valid in the eye of law. Accordingly the points 1 and 2 are

answered in favour of the 1st respondent/2nd defendant and against the appellant/1st

plaintiff.

23. Point No.3:-

The plaintiffs claim share in B schedule which are stated to be gold items.

The defendants state that they have been gifted during life time of their mother.

The plaintiffs marked Ex.X.2 - Photo through P.W.2, who is none other than the

daughter of the first plaintiff. It is evidence that the photo was taken during her

marriage which was held in the year 2000 and the suit filed in the year 2015.

It is admitted that their mother Sivathaimmal died on 27.12.2012. The defendant?s

counsel argued that the photo marked through P.W.2 and the same was not marked

through the person who took the photo by relying on order of this court passed in

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C.R.P.No.2446 of 2003. On perusal of that order it is clear that the marking of photo

was objected at the time of producing through the witness. In this case there was no

objection raised at the time of marking. But, through Ex.X.2 photo only it cannot be

held that jewels are available for partition. Moreover, it is pertinent to note here that

the plaintiffs have not visited the deceased mother at the time of her death. It is the

evidence of D.W.1 that ?rptj;jp mk;khs; ,we;jjw;F thjpfSf;F jfty; brhy;yp

tutpy;iy.? This evidence is also to be taken into consideration. There is no

concrete evidence produced by the plaintiffs to show about the availability of B

schedule jewels for partition. Therefore, the trial Court has corrected decided with

regard to B schedule properties and this point is answered against the plaintiffs.

24. Point No.4:-

The parties are Christian. In case of a Christian daughter, she has no pre

existing right in the family property and her rights arise when her parents died

intestate. In this case the parents of the plaintiffs did not die intestate, they executed

registered settlement deeds and the registered Wills in favour of 2nd defendant in

respect of some suit properties. The plaintiffs originally filed the suit that they can

claim share in the family property even their parents alive as per provision of Section

42 of Indian Succession Act, which is misconstrued by them. During the course of

arguments the plaintiffs argued that trial court allowed partition in other properties,

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against which the defendant has not preferred any appeal. The defendant states that

the suit item Nos.10, 13, 14 and 16 of A schedule are not related to their family

properties. The availability of B schedule properties are not established. As discussed

in points 1 and 2 the settlement deeds and Wills Exc.B.12 to Ex.B.15 are legally

valid. Therefore, the trial court has properly appreciated the evidences and correctly

passed the judgment and decree. For all these reasons, the judgment and decree of the

trial court is sustainable in law and the same need not be interfered by way of this

appeal. Thus the appeal fails.