Madras High Court

Rajkumar vs Rajamani @ Vennila on 13 February, 2025

                                                                                    AS.No.90 of 2018


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 13.02.2025

                                                        CORAM:

                                  THE HONOURABLE Mr.JUSTICE C.KUMARAPPAN

                                                    A.S.No.90 of 2018

                  Rajkumar
                                                                           ... Appellant/Defendant
                                                          -Vs-
                  Rajamani @ Vennila
                                                                           ... Respondent/Plaintiff

                  PRAYER: First Appeals filed under Section 96 of the Code of Civil
                  Procedure praying to set aside the Judgement and preliminary decree dated
                  13.10.2017 in O.S.No.92 of 2015 on the file of the II Additional District
                  Court, Salem.
                                   For Appellant     : Mr.D.Shivakumaran

                                   For Respondent    : Mr.S.Kalyanaraman
                                                        *****

                                                    JUDGMENT

The instant Appeal Suit arising against the decree and judgment passed

by the II Additional District Court at Salem dated 13.10.2017 in O.S.No.92 of

2015.

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2. The Appellant and the respondent are the defendant and the plaintiff

in the suit. The parties will be referred to according to their litigative status

before the Trial Court.

3. Short facts which are necessary for disposal of this appeal is as

follows:-

(a). The suit property originally belonged to one Mr.Elumalai by virtue

of the Partition deed dated 24.12.1990. He died on 29.01.1993. His wife

Pappathi @ Pappa also died on 10.08.2005. According to the plaintiff, after

the demise of Pappathi @ Pappa, the only legal heirs for late Elumalai are the

plaintiff and the defendant. Therefore, the plaintiff came up with the suit for

partition to divide the suit property into two equal shares and for allotment of

one share.

(b). The said suit was resisted by the defendant by contending that

during the life time of his father late Elumalai, he has executed a Will dated

07.03.1992, wherein the entire property was bequeathed to him and in the said

Will, there is a justifiable reason for exclusion of the plaintiff, as the

arrangement was made to provide 20 sovereigns of gold and a sum of

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Rs.3,00,000/- in cash, by imposing an obligation on their mother. It was

further stated that a sum of Rs.2,00,000/- was paid to the plaintiff's husband to

purchase a vehicle. Hence, prayed to dismiss the suit.

4. On the above pleadings, the learned Additional District Judge framed

the following issues:-

1.Whether the suit properties are the joint family properties of the plaintiff and the defendant?

2.Whether the Will dated 07.03.1992 executed by Elumalai is true valid and acted upon?

3.Whether the plaintiff is entitled to get preliminary decree for partition as prayed for?

4.Whether the plaintiff is entitled to get permanent injunction as prayed for?

5.To what relief?

5. At Trial, the plaintiff was examined as PW1. Exs.A1 to A9 were

marked. On behalf of the defendant, he himself was examined as DW1 and

one of the attestor was examined as DW2 and marked Exs.B1 to B6.

6. After considering both oral and documentary evidence and having

considered the submissions made by either side, the Trial Court decreed the

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suit in favour of the plaintiff. Aggrieved with the said finding, the defendant

is before this Court by way of this Appeal.

7. Heard Mr.D.Shivakumaran, learned counsel for the appellant and

Mr.S.Kalyanaraman, learned counsel for the respondent.

8. The learned counsel for the appellant would vehemently contend that

in order to prove the Will under Ex.B6 dated 07.03.1992, the attestor was

examined and through the attestor, the execution of Will has been proved in

accordance with Section 63 of Indian Succession Act and Section 68 of the

Indian Evidence Act. He would also further contend that there are no

suspicious circumstances in the execution of the Will and further, the mere

non registration of the Will is in no way a suspicious circumstance and that

the execution of Will would arise only to alter the natural course of

succession. He would further contend that, the Will itself has a justifiable

reason to exclude the plaintiff from succession. But, ignoring the settled legal

position and contrary to the evidence, the Trial Court erroneously decreed the

suit. Hence, he prayed to allow this appeal.

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9. Per contra, the said contention was stoutly objected by the respondent

by relying upon the non registration of the Will besides he also would contend

that though their father Mr.Elumalai died on 29.01.1993, almost for a period

of more than 25 years, no mutation was effected by her brother qua the

defendant. Therefore, the alleged Ex.B6-Will is a fabricated one and the same

was pressed into service only to defeat the rights of the plaintiff. He would

also contend that the learned Trial Judge has gone into all the suspicious

circumstances of the Will and has arrived at a right conclusion. Therefore,

prayed to dismiss the instant appeal.

10. From the submissions made by the either side counsels, the

following points arises for determination in this appeal.

(i) Whether the plaintiff is entitled for a decree for partition as prayed for?

(ii) Whether Ex.B6 Will was proved in a manner known to law?

11. It is an admitted fact that the plaintiff and the defendant are the only

legal heirs to their father late Elumalai. Further, it is equally admitted by both

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parties that the suit property absolutely belongs to their father Elumalai. In

short, the case of the plaintiff is intestate succession, the defence of the

defendant is the testamentary succession. Therefore, the entire issue revolves

around the proof of Will [Ex.B6] propounded by the defendant. If the

defendant is able to prove Ex.B6 Will, then the plaintiff is not entitled for the

partition. Therefore, we must find out, whether Ex.B6-Will has been proved

by the defendant in accordance with law.

12. Before we delve into the merits of this case, this Court deems it

appropriate to refer the judgment of a three-Judge Bench of the Hon'ble

Supreme Court in Shivakumar and others Vs. Sharanabasappa and others

reported in (2021) 11 SCC 277. Wherein the Hon'ble Supreme Court, after

analysing various precedents from 1946 upto 2017, including the very famous

judgment of H.Venkatachala Iyengar Vs. B.N.Thimmajamma reported in

AIR 1959 SC 443 has encapsuled the relevant principles governing the

adjudicatory process of the Will. For ready reference, this Court deems it

appropriate to extract the relevant portion of the said judgement as under:-

“12. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a will could

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be broadly summarised as follows:

12.1. Ordinarily, a will has to be proved like any other document;

the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon.

12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.

12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.

12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of

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the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.

12.6. A circumstance is “suspicious” when it is not normal or is “not normally expected in a normal situation or is not expected of a normal person”. As put by this Court, the suspicious features must be “real, germane and valid” and not merely the “fantasy of the doubting mind”.

12.7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.

12.8. The test of satisfaction of the judicial conscience comes into

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operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?

12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will.” (Emphasis supplied by this Court)

13. While perusing the evidence, keeping in mind with above ratio, in

order to prove the Will, the defendant has examined attestor [DW2]. Apart

from examining the attestor, it is incumbent upon the propounder of the Will

to dispel all the suspicious circumstances, shrouded the Will. Accordingly,

the suspicious circumstances urged by the plaintiff needs consideration. In the

case in hand, though Elumalai died on 29.01.1993, until filing of the suit in

the year 2015, the defendant did not take any steps to mutate the property.

The very Will suddenly surfaced only after filing of the instant suit. But, this

long delay was not explained by the defendant. Further, as we know, the

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registration of Will is not compulsory. But, in the above background the non

registration of the Will also assumes significance. But, this suspicious