Madras High Court
D. Pappathy vs D.Arumugam on 9 January, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
SA No.1078 of 2013
IN THE HIGH Court OF JUDICATURE AT MADRAS
DATED : 09-01-2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Second Appeal No. 1078 of 2013
and
M.P.No.1 of 2015
---
D. Pappathy .. Appellant
Versus
1. D.Arumugam
Nanjappan (Died)
Ramasamy (Died)
2. Pushpa
3. Rajendran
Prakash (Died)
Udayakumar (Died)
4. Thulasiammal
5. Nanjammal
6. Ranganayaki
7. Kanaka
8. Vijayalakhsmi
9. Gajalakhsmi .. Respondents
Second Appeal filed under Section 100 of Code of Civil Procedure to
set aside the Judgment and Decree dated 25.02.2013 passed in A.S.No.17 of
2012 on the file of the learned Principal District Judge, Coimbatore reversing
the judgment and decree dated 29.09.2011 rendered in O.S. No. 212 of 1993
on the file of the I Additional Subordinate Judge, Coimbatore.
For Appellant : Mr. M.Muthappan
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SA No.1078 of 2013
For Respondent 1 : Mr. A.E. Ravichandran
for Ms. C. Usha
For Respondent 4 : No appearance
JUDGMENT
The present Second Appeal arises out of the judgment and decree dated
22.02.2013 passed in A.S. No. 17 of 2012 on the file of the learned Principal
District Judge, Coimbatore reversing the judgment and decree dated
29.09.2011 made in O.S. No. 212 of 1993 on the file of the learned I
Additional Subordinate Judge, Coimbatore.
2. The Plaintiff in O.S. No. 212 of 1993 is the Appellant in this
Appeal. She has filed the suit as against the Defendants 1 to 13 for a partition
to divide the plaint described property into 6 equal shares with reference to
good and bad soil, allot one such share to her, to appoint an Advocate
Commissioner to divide the suit properties and to allot the legitimate share to
her, to direct the Defendants to pay the future mense profits till the date of
allotment and for costs.
3. It is stated in the plaint that the Plaintiff, Defendants 1, 2, 3, 8 and
late. Chinnasamy are the children born to late. Dasa Gounder. In other words,
the deceased Dasa Gounder had 4 sons and 2 daughters. The Defendants 4, 5,
6 and 7 are the legal heirs of the deceased Chinnasamy, brother of the Plaintiff.
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On 29.11.1998, the said Dasa Gounder died leaving behind the Plaintiff and
Defendants 1 to 8 as his legal heirs. It is stated that the A Schedule described
property of the plaint was purchased through a registered sale deed dated
26.11.1945 by the deceased Dasa Gounder. Subsequently, the deceased Dasa
Gounder purchased B Schedule property of the plaint through a registered sale
deed dated 17.12.1957 in his name. On 22.06.1976, through a registered sale
deed, the father of the Plaintiff and Defendants 4, 5, 6, and 7 had purchased
the C Schedule property. Thus, the properties described as A, B and C in the
schedule of the plaint was the self-acquired property of her father. Therefore,
after the death of her father on 29.11.1988, the Plaintiff approached the
Defendants directly and through Panchayatars for amicable partition of the
properties described under Schedule as A, B and C but it was refused by the
Defendants. On the other hand, the Defendants attempted to alienate the
properties and therefore, the Plaintiff sent a notice dated 09.04.1992 to the
Defendants 1 and 8 calling upon them to divide and allot 1/6 share in the plaint
described properties. Though the Defendants 1 and 8 received the notice, they
did not give any reply and therefore, the Plaintiff has filed the suit.
4. During the pendency of the suit, the second Defendant died and
therefore, his legal heirs were brought on record as Defendants 9 to 13.
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5. On notice, the third Defendant filed a written statement
contending that the deceased Dasa Gounder purchased the A, B and C
Schedule properties out of the income earned by the third Defendant as an Ex-
Serviceman in Indian Army. According to the third Defendant, he sent a major
portion of his salary to his father and out of the same, he purchased the
properties described in the Schedule hereunder. His father has no independent
source of income and in fact, he finds it extremely difficult to nurture his six
children. On the other hand, after marriage, the Plaintiff had took with her the
gold ornaments of her mother. The Plaintiff has, therefore no right to claim a
share in the plaint described properties and prayed for dismissal of the suit.
6. Later, an additional written statement was filed by the third
Defendant in which it was stated that the deceased Dasa Gounder executed a
registered Will dated 25.11.1988 whereby he bequeathed some of the
properties owned by him to his children. As per the Will dated 25.11.1998,
the A Schedule property was given to the first Defendant, the B Schedule
property was given to the male children of Late. Chinnasamy namely the
Defendants 5, 6 and 7. The C Schedule properties was given to the second
Defendant (since deceased) and the D Schedule was given to the third
Defendant. It was also stated that on the strength of the Will, the third
Defendant had sold a portion of the land measuring 1 acre and 40 cents and
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retained the remaining lands in the D Schedule property. Similarly, the others,
to whom A, B and C Schedule properties were allotted under the Will have
also alienated some portions of the lands. According to the third Defendant,
such alienations have taken place in the year 1991-1992 and therefore, the suit
filed by the Plaintiff is not maintainable. Accordingly, the third Defendant
prayed for dismissal of the suit.
7. The eighth Defendant, who is one of the daughters of late. Dasa
Gounder, filed a written statement contending inter alia that after the death of
her father, all his children are entitled to 1/6 share in the suit property. The
eighth Defendant also submitted that the Plaintiff and other legal heirs of Dasa
Gounder are equally entitled to a share in the plaint described properties and it
cannot be deprived in any manner. It is also stated that if a decree for partition
is granted, the eighth Defendant is ready to pay the Court fee proportionate to
her share.
8. During trial, the Plaintiff examined herself as P.W-1 and marked
Ex.A-1 to Ex.A-13. On behalf of the Defendants, the third Defendant
examined himself as D.W-1 and three other witnesses were examined as D.W-
2 to D.W-4 and Ex.B-1 to Ex.B-6 were marked. On appreciation of the oral
and documentary evidence, the trial Court concluded that the Will said to have
been executed by the deceased Dasa Gounder was not proved in a manner
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known to law. To substantiate the execution of the Will, D.W-2, Officer of the
Registration Office was examined but the trial Court discarded his testimony
as insignificant. The Defendants also examined D.W-3, one of the attesting
witnesses to the Will but his testimony was inconsistent with reference to the
place of execution of the Will. Therefore, it was held by the trial Court that
the genuineness of the Will has not been proved by the Defendants. The trial
Court also noted that the Will is said to have been executed in the hospital few
hours prior to the death of the testator and it gives suspicion as to the
genuineness of the Will. Even though it was argued that necessary charges
have been paid to the office of the Sub-Registrar and the Sub-Registrar himself
came to the hospital for execution of the Will, the trial Court refused to accept
the Will as genuine in the absence of any records from the office of the Sub-
Registrar, to substantiate the same. The trial Court also referred to the
deposition of first Defendant in his cross-examination, wherein he has stated
that he was not aware of the hospitalisation of his father from 10.11.1988 to
19.11.1988 or the treatment given to him. As the Defendants failed to prove
the manner in which the Will was executed, the trial Court held that the
Plaintiff has proved her claim for partition. Accordingly, the trial Court
passed a preliminary decree for partition on 29.09.2011.
9. Assailing the judgment dated 29.09.2011 passed in O.S. No. 212
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of 1993, the third Defendant alone preferred A.S. No. 17 of 2012 before the
learned Principal District Judge, Coimbatore. The first appellate Court, on
scrutinising Ex. B-1 and Ex.B-2 concluded that the Plaintiff married a person
of her choice and that was the reason she was not given any share in the Will.
The first appellate Court also held that the eighth Defendant, who supported
the case of the Plaintiff by way of written statement, did not step into the
witness box. On the other hand, it was the eighth Defendant, who signed as a
witness in the Will. By placing reliance on the certificate presented for
registration of the Will, the Appellate Court accepted the plea of the third
Defendant and held that the Will is true and genuine. The appellate Court
also, on going through the recitals in the Will has held that the testator has
consciously excluded the Plaintiff and the eighth Defendant from giving any
share and he has clearly stated that his sons and grandsons alone are entitled to
a share in the properties owned by him. Accordingly the Appellate Court
reversed the judgment and decree passed by the trial Court and allowed the
appeal.
10. Aggrieved by the Judgment and Decree dated 25.02.2013 passed
in A.S. No. 17 of 2012, the Plaintiff is before this Court with this second
appeal.
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The learned Counsel for the Appellant/Plaintiff submitted that the
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suit was filed by the Plaintiff for partition. The Defendant-3 in the suit is the
brother of the Plaintiff who alone had filed the first appeal before the first
appellate Court. The other brothers of the Plaintiff did not assail the
preliminary decree for partition passed by the trial Court. The Defendant-8 in
the suit is the elder sister of the Plaintiff. The Defendant-3 had filed Written
Statement and contested the suit. It is the claim of the Defendant-3 that their
father had executed a WILL which was registered and as per the WILL, the
male heirs alone are entitled to a share in the immovable properties.
12. The learned Counsel for the Appellant-Plaintiff also invited the
attention of this Court to the discussion of evidence of the parties, particularly
the claim of the Defendant-3 as D.W-1, The third Defendant claimed that he
had been in Military Service at the time of his father's death and out of the
salary amount sent by him, the suit properties have been purchased in the name
of his father. The third Defendant also claims claims that he attended his
father, when he was in hospital. He also claims that his father, during
treatment in the hospital, had handed over the WILL to him, whereas he claims
that it was a registered WILL. When the father of the Plaintiff was under
treatment in Hospital, on 25.11.1988 the WILL was executed and it was
presented before the Sub-Registrar concerned on 28.11.1988 and it was
registered on 29.11.1988. In the WILL, there were two attesting witness. One
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of the attesting witnesses was examined as D.W.-2. The eighth Defendant is
also one of the attesting witness. The learned I Additional Subordinate Judge,
Coimbatore observed that the Defendants failed to prove the execution of the
WILL by not summoning the documents from the office of the Sub-Registrar
concerned to show the manner in which the Will was registered. Further, the
third Defendant was unable to explain why Dr.Kumar had attested the WILL.
However, the said Doctor Kumar was not summoned and he was not examined
as witness. The person who was examined as D.W-3 was the attesting witness
who claimed that he had visited the hospital to see the father of the Plaintiff
and Defendant-3 undergoing treatment. However, in his deposition, he has
stated that the Will was executed in the hospital itself. On the basis of
inconsistent plea of DW3, the learned I Additional Subordinate Judge,
Coimbatore arrived at a conclusion that the WILL had not been proved as per
Section 68 and 69 of the Indian Evidence Act. Also, the learned I Additional
Subordinate Judge, Coimbatore had arrived at a conclusion that if the WILL
had been true and genuine, the other brothers of the Defendant-3 would have
contested the suit, but, they remained ex parte. On assessment of evidence
available before the learned I Additional Subordinate Judge, Coimbatore, the
contention of the Defendant-3 in the Written Statement was rightly rejected
and a preliminary decree for partition was granted.
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13. The learned counsel for the Plaintiff/Appellant further submitted
that the third Defendant alone filed Appeal in A.S.No.17 of 2012 before the
learned Principal District Judge, Coimbatore. In the discussion of the evidence
by the learned Principal District Judge, Coimbatore, it was concluded that the
presumption is that it is a registered WILL and it is proved by examining D.W-
3 and thereby rejected the contention of the Plaintiff. The learned Counsel for
the Plaintiff further submitted that the reasonings assigned by the appellate
Judge in Paragraph 15 to 18 are per se illegal, unreasonable and arbitrary and
therefore, the learned counsel prayed for allowing this appeal, by setting aside
the Judgment and Decree passed by the Appellate Court and to restore the well
considered Judgment and Decree passed by the trial Court.
14. Per contra, the learned Counsel appearing for the Respondent- 1
in this appeal/third Defendant in the suit, submitted that there is no suspicious
circumstances surrounding the execution of the Will. D.W-3 Jayagopal was
one of the attesting witnesses to the Will. The testimony of D.W-3 clears the
air of controversy surrounding the Will. D.W-2 Rajasekar served as Assistant
in the office of the Sub-Registrar Office and he deposed about the registration
of the WILL in the Sub-Registrar Office. Dr. Kumar, who treated the
deceased Dasa Gounder is also an attesting witness, but he was not examined.
It is the contention of the learned Counsel appearing for the Respondent-1 is
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that the suit was instituted in the year 1993 and the evidence was recorded in
the year 2009. Further, Late. Dasa Gounder executed the Will thereby granted
shares in the property to his sons by clearly excluding his daughters, the
Plaintiff and 8th Defendant. If Dasa Gounder had executed a Will whereby the
entire property was allotted to the Defendant-3, then it can give rise to a
suspicious circumstances. Here, he had allotted shares of the immovable
property to his sons and grand sons born to his deceased son Chinnasamy and
therefore, it cannot be said that the Will is ingenuine or there is no scope for
the deceased to have executed the Will. It is to be noted that except the third
Defendant, the other sons, who are the Defendants in the suit, remained ex
parte. Also another point to be noted is that Defendant-8 is another sister of
Plaintiff and she had attested the Will. However, the Plaintiff has not chosen
to examine her as a witness in the suit. On the other hand, the eighth
Defendant, having signed the Will as one of the witnesses, filed a written
statement supporting the claim of the Plaintiff and sought for a share in the
suit properties. Further, after filing of written statement and Additional
Written Statement by the Defendant-3 Arumugham, bringing to the notice of
the Court the execution of a registered Will, the Plaintiff has not filed any
reply statement repudiating the execution of the Will. During trial, the
Plaintiff or Defendant-8 Thulasiammal has not filed any application to deny
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the Thumb impression of their father Dasa Gounder in the Will or doubted the
execution of the WILL. Under those circumstances, it is natural that the
suspicious circumstances does not arise in this case. Therefore, the first
Appellate Court is wholly justified in holding that the WILL claimed by the
Defendant-3 in the written statement was a genuine WILL. Merely the
daughter/Defendant-8 who is the sister of the Plaintiff had not been examined
or daughters were not granted shares it will, it will not create suspicious
circumstances or invalidate the Will. Moreover, the learned Counsel appearing
for the Respondent-1 invited attention of this Court that the Trial Court had
framed Issues. Issue '3' relates to the Will viz., ''Whether the father of the
Plaintiff and the Defendants executed any WILL as alleged by the 3rd
Defendant.''
15. Subsequently, the learned Sub Judge, Coimbatore had raised
additional issue which reads that ''Whether as per WILL dated 25.11.1988, the
father has bequeathed specific shares of all his properties to specific persons
mentioned in the WILL.''
16. The learned counsel for the first respondent-third Defendant
submitted that the said additional issue is unwarranted. The learned Counsel
for the Respondent-1 submitted that after filing of written statement and
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additional written statement by the Defendant-3, the Plaintiff had not filed any
reply statement denying the execution of WILL by their father. If she had filed
any reply statement, then the Learned Additional Subordinate Judge,
Coimbatore is justified in framing additional issue. When there is no reply
statement filed by the Plaintiff, in the absence of any pleading denying or
disputing execution of the WILL, the framing of Additional issue by the
learned Additional Sub Judge, Coimbatore itself is erroneous.
17. The learned Counsel for the Respondent-1 further submitted that
the learned Additional Sub Judge, Coimbatore in the course of discussion of
evidence observed that it is the right thumb impression of the father of the
Plaintiff and the Defendants. Whether right thump impression or left thumb
impression it will not create or lead to suspicious circumstances. As per
Section 63(a) of Indian Succession Act, 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. Therefore, the suspicious circumstances raised by the learned
Additional Sub Judge, Coimbatore is unwarranted and erroneous. The 3rd
Defendant had summoned the staff of the Sub-Registrar Office as a Witness.
D.W-2, Rajasekar had deposed regarding the execution of the registered
WILL. Further, the identity of the testator was established by Dr. Kumar
before the Sub-Registrar who treated Dasa Gounder in his hospital. The other
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witness N. Jayagopal also signed as an attesting witness before the Sub-
Registrar. The fact of registration and issuance of a certificate of registration
was proved by D.W-2 Rajasekar, the staff of the Sub-Registrar office
concerned based on the records available in the Sub-Registrar Office. Even
otherwise, the registration of WILL or any document gives a impression that it
is duly registered. The presumption is always in favour of the registered
document. While so, ignoring those facts and circumstances, the trial Court
erroneously passed a preliminary decree for partition. The learned Principal
District Judge, Coimbatore in the discussion of evidence in Para.10 to 18 had
placed reliance on the rulings relied by the learned Counsel for the Defendants
in Jayalakshmi Ammal vs Lakshmi Ayangar reported in 1992 (2) Law
Weekly 523 wherein it was held that if the WILL is presented for registration
by its executant and registered properly in accordance with law, the reliability
or executability of the Will cannot be questioned. The appellate Court also
relied upon another ruling of Hon'ble Supreme Court of India in the case of
Rabindra Nath Mukherjee and another vs V.Pachannan Banerjee reported
in AIR 1995 Supreme Court 1684 wherein it was held that genuineness of the
WILL cannot be doubted only on the ground that daughters were disinherited.
The learned Principal District Judge, Coimbatore had also referred to the
judgement in the case of Jayalakshmi Ammal vs Lakshmi Ayangar reported
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in 1992(2) Law Weekly 523 and held that the Court is not entitled to make
surmises and assume anything contrary to document (WILL) and set aside the
preliminary decree passed by the trial Court.
18. The learned Counsel appearing for Respondent-1 relied upon the
rulings in 2010 SCC online Madras 5553 in the case of C.S.Devakumar vs
K.S.Krishna Kumar and others and in the case of Selvasubramaniam vs
Subburathinam reported in 2015(3) Law weekly 7. The facts of the case in
Selvasubramaniam vs Subburathinam reported in 2015(3) Law weekly 7 and
submitted that those case are squarely applicable to the facts of this case. The
relevant portion of the said judgment reads thus.
''14. Admittedly, in the Plaint, the Plaintiff had not stated
anything about the alleged WILL at all. It is not as though the
Plaintiff was not aware of the WILL. For the legal notice issued
by the Plaintiff prior to the filing of the suit, the Defendant sent
a reply notice in which, he has categorically stated that
Mrs.Kuttiyammal had executed the WILL on 22.06.1977 thereby
bequeathing the suit properties in his favour. It is the evidence
of P.W.1 that after the said reply notice, she obtained a copy of
the WILL and then only, she could ascertain that there was such
a WILL. All these things happened prior to the filing of the suit.
Therefore, he would have, by all means, raised a dispute
regarding the WILL in the plaint itself. He has failed to do so.
In the Written Statement filed by the Defendant, he has
categorically taken a plea that the WILL was executed by
Mrs.Kuttiyammal in sound state of mind and by virtue of the said
WILL, he has become the absolute owner of the suit properties
on the demise of Mrs.Kuttiyammal. Even after that, the Plaintiff
did not file any reply statement raising a dispute regarding the
WILL.
https://www.mhc.tn.gov.in/judis 15. For a moment,
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may not09:19:15
be understood
pm ) as though, I
insist for such a reply statement in every case. Even without
reply statement, the Plaintiff can proceed with the case provide,
such a dispute has already been raised in the plaint. But, in the
instant case, as I have already pointed out, in the plaint, there is
no dispute raised regarding the WILL. Incidentally, there was
also no dispute raised in respect of the WILL by filing any reply
statement. However, the trial Court thought it fit to frame an
issue in respect of the execution of the WILL, on its own, I have
got my own reasons to say that the trial Court was not right in
raising such an issue, when there was no dispute raised at all by
the Plaintiff regarding the WILL.''
19. The learned counsel for the first respondent also submitted that
the Defendant-3 filed written statement denying the claim of the Plaintiff in
the suit and stated that Dasa Gounder executed the Will in favour of his sons.
However, the Plaintiff had not filed any reply statement to the written
statement. Therefore, in the light of the reported rulings mentioned supra, the
learned Counsel appearing for Respondent-1 seeks to dismiss the Second
Appeal as having no merits.
20. The learned Counsel appearing for the Appellant, by way of reply
to the submissions of the learned Counsel for the Respondent-1, submitted that
the facts in the reported ruling in the case of Selvasubramaniam vs
Subburathinam reported in 2015 (3) L.W.7 is not applicable to the facts of the
case. In that case, the Plaintiff caused a pre-suit notice which was
acknowledged by the Defendants and they sent their replies intimating the
Plaintiff about the execution of the WILL by the testator. In this case, the
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Plaintiff had sent pre-suit notice seeking partition which was received by the
Defendants, but they have not sent any reply. Therefore, the facts of the
reported ruling will not support the case of the respondent in this Second
Appeal. Further, it is not necessary that reply statement has to be filed in
every case when new facts are introduced by way of written statement. In any
event, merely because a reply statement was not filed by the Plaintiff, it will
not weaken the plea raised by her in the plaint and prayed for allowing the
second appeal.
21. Heard the learned counsel for the Appellant/Plaintiff and the
learned counsel appearing for the contesting first respondent-third Defendant
and perused the materials placed on record.
22. At the time of admission of this second appeal on 10.03.2016, the
following substantial questions of law are framed for consideration:-
(i) Whether the first Appellate Court is right in rendering a
finding that the said WILL is genuine in the admitted fact that it
is the Right Thumb impression of the Testator and not the Left
Thumb Impression of the Testator.
(ii) Whether the affixing of the Right Thumb Impression in
the said WILL on the date of death of the testator amounts to
proper execution as provided under Section 63 of the Succession
Act.
(iii) Whether the Appellate Court has properly understood
and followed the( Uploaded
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on: 28/03/2025 in ''Gobalan
pm ) vs Chandri
A.F.A.No.47 of 2002 decided on 07.06.2013 (2013 (3) Kerala
Law Times 69) wherein it was held that ''As per Section-63 of
the Indian Succession Act, 1925 - Even the absence of any
specific denial of execution of a WILL or even an admission of
its existence will not absolve the duty of the propounder of a
WILL to prove its genuineness and dispel all the suspicious
circumstances surrounding it's execution.
23. The Plaintiff has filed the suit for partition and allotment of 1/6
share to her. Admittedly, before filing the suit, a pre-suit notice was sent but
the Defendants did not send any reply.
24. The Plaintiff, Defendants 1, 2, 3 and 8 are the surviving children
of the deceased Dasa Gounder. One of the sons of Dasa Gounder by name
Chinnasamy pre-deceased his father. Therefore, the children of Chinnasamy
were arrayed as Defendants 4, 5, 6 and 7. It is pertinent to mention that the
Plaintiff and the eighth Defendant are the daughters born to late. Dasa
Gounder and rest of the children are sons born to him.
25. On notice in the suit, the third Defendant projected a theory that
his father Dasa Gounder had executed a Will dated 25.11.1988 whereby all his
male heirs viz., sons and grandsons were given a share in the plaint described
property to the exclusion of the Plaintiff and the eighth Defendant. When a
written statement was filed by the third Defendant indicating the Will dated
25.11.1988 executed by his father, the Plaintiff did not file a reply statement
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repudiating the averments relating to the Will.
26. During trial, the Will was disbelieved and suspected mainly on
the ground that it was executed on the same day when the deceased Dasa
Gounder died. In other words, the Will was executed on 25.11.1988, on which
date, the testator died. Whether the execution of the Will on the same date of
death of the testator will give rise to a suspicion as to the execution or
genuineness of the Will? This is the main controversy involved in this appeal.
27. It must be noted that there is no bar for a testator to execute a Will
a few days or few hours prior to his or her death. All that is required to be
shown is that the Will was executed free from any suspicious circumstances.
Further, the Will must be proved through the surviving attesting witness and it
is one of the mandatory requirements to be fulfilled by the person who seeks to
prove the genuineness of the Will as per Section 63 of The Indian Succession
Act and Section 68 of The Indian Evidence Act. In case, if the Will is
registered, it partakes the character of a genuine Will and it's ingenuineness
must be specifically pleaded and proved before the Court.
28. In this case, the deposition of D.W-3 assumes importance. D.W-3
visited the testator in the hospital and at that time, the testator said to have
expressed his willingness to bequeath his wealth to his sons and grandsons.
DW3 also deposed that (the
https://www.mhc.tn.gov.in/judis testator
Uploaded expressed
on: 28/03/2025 09:19:15 pmhis
) intention to dispose his
wealth only to his sons and grandsons in various propositions and asked him
to handover the Will to Govindammal, a document writer in Oondipudur.
After the Will was prepared, the testator put his thumb mark in the Will in the
presence of D.W-3. The identity of the testator was made clear by Dr.Kumar,
who treated him in the hospital. It is pleaded before this Court on behalf of the
Appellant-Plaintiff that Dr. Kumar was not examined as a witnesses before the
trial Court. First of all, it is not necessary to examine Dr.Kumar, who only
identified the testator in the hospital. Further, it was explained by the
Appellant-third Defendant that Dr. Kumar shifted from the hospital and his
whereabouts could not be ascertained and consequently, summons could not
be sent. This explanation, in the opinion of this Court is bona fide. Even
otherwise, attempts have been made to examine Dr.Kumar, but the Appellant-
third Defendant could not succeed in such attempt. Therefore, this Court holds
that non-examination of Dr. Kumar will not in any manner weaken the defence
projected by the Appellant-third Defendant.
29. The eighth Defendant is one of the daughters of the testator and
she was also the other attesting witness to the Will. The Will was later
presented to the office of the Sub-Registrar for registration and it was duly
registered. The certificate of registration was also marked through D.W-2, an
Assistant working in the office of the Sub-Registrar. Ex.B6, copy of the Will
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was also marked through D.W-2. In fact, on the same day of affixing the
thumb impression in the Will on 25.11.1988, the testator died. Or in other
words, few hours after the Will came to be executed, the testator died. Given
the manner in which the Will was executed by the testator in the hospital, after
having been identified by Dr.Kumar and the Will having been attested by
D.W-3 and the eighth Defendant, daughter of the testator, this Court is of the
view that the execution of the Will has successfully passed through the litmus
test contemplated under Section 63 of The Indian Succession Act and Section
68 of The Indian Evidence Act. Therefore, this Court holds that merely
because the testator died on 25.11.1988 few hours after executing the Will, it
will not be taken as a suspicious circumstances surrounding the Will or to hold
that the due execution of the Will has not been proved. Therefore, the
judgment and decree passed by the trial Court, is liable to be interfered with by
this Court.
30. As rightly pointed out by the learned Counsel appearing for the
Respondent-1, as per Section 63(a) of Indian Succession Act, 1925, 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. Here, the WILL
executed by the testator was registered before the competent Sub-Registrar,
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after following the due procedures required for registration of the Will. The
Doctor who treated the testator duly identified the testator and signed the Will
for the purpose of identifying the testator. That apart, D.W-3 is one of the
attesting witnesses to the Will and he had spoken about the execution of the
WILL. He also deposed that the testator does not want his children to wage a
pitched battle for his wealth after his death and therefore asked him to prepare
a Will. He also deposed that it is the intention of the testator to give his wealth
to his male descendants to the exclusion of his female children. Therefore, it
is clear that the intention of the testator was very clear that his wealth has to go
only to his sons and grandsons. Further, before the registering authority, Dr.
Kumar identified the testator for registering the WILL. There is evidence
through D.W-3 that the Sub-Registrar visited the hospital to register the
WILL. It is in evidence of D.W-1 that he paid the necessary charges to the
Sub-Registrar concerned to summon him to appear before the Court along
with relevant records to prove the registration of the WILL. But, unfortunately
the Sub-Registrar did not appear and his staff namely Rajasekar appeared and
filed the registration copy of the WILL and it was marked during trial.
31. To prove the WILL as per Section 63(a) of Indian Succession
Act, it must be shown that the Will is attested by two or more witnesses who
had seen the testator sign or affix his signature or thumb impression.
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Similarly, the testator must see the witness subscribe his or her signature in the
document. This is one of the requisite for proof of a Will. In this case, as per
Section 63 of Indian Succession Act, D.W-3 Jayagopal was examined to prove
the Will. By reason of examination of one of the witnesses to the Will, the
Defendants have successfully proved the execution of the Will.
32. The learned Sub-Judge, Coimbatore by raising additional issues
without any pleading on the side of the Plaintiff disputed the genuineness of
the Will. As rightly pointed out by the learned counsel for the first
respondent-Defendant No.3, the framing of additional issue itself is
unwarranted. When the third Defendant had clearly stated the execution of the
WILL in his written statement and also examined one of the attesting
witnesses to the Will, this Court is of the view that it is sufficient to prove the
due execution of the Will.
33. The Defendant-8 is sister of the Plaintiff and she is also one of the
attesting witness to the Will. As pointed out by the learned Principal District
Judge, Coimbatore, for the reasons best known, she did not enter the witness
box to support the claim of the Plaintiff. In fact, it is the eighth Defendant,
who has filed a written statement supporting the claim of the Plaintiff for
partition of the suit properties. In her written statement, there is nothing to
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show that she was one of the attesting witnesses to the Will. The eighth
Defendant did not say anything about the Will in her written statement. As an
attesting witness, she is competent to speak about the due execution of the
Will. On the other hand, she has merely filed a written statement supporting
the case of the Plaintiff, without referring to the Will executed by her
father/testator. Therefore, the learned District Judge had drawn an adverse
inference against the conduct of the Defendant-8, which, in the opinion of this
Court, is proper.
34. As rightly contended by the learned Counsel for the Respondent-
1, the Plaintiff had not filed any petition to subject the WILL for expert
opinion regarding thumb impression of the testator. Also, as observed by the
learned Principal District Judge, Coimbatore all the other Defendants had
remained ex parte in the Trial. Those circumstances were not considered by
the learned Additional Subordinate Judge, Coimbatore, when he had rejected
the WILL on the ground it is suspicious and ingenuine. The suspicious
circumstances was cleared by the Plaintiff by examining witnesses D.W-2 and
D.W-3. In the light of evidence of D.W-2 and D.W-3, the learned Principal
District Judge, Coimbatore is right in arriving at a conclusion that the WILL
had been proved.
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The learned (Principal District Judge relied on the rulings of the
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Hon'ble Supreme Court of India as well as the Judgment of this Court to arrive
at a conclusion that merely because the daughters have been disinherited it
does not create suspicious circumstances. Also the learned Principal District
Judge, Coimbatore observed that both the daughters have been married and
that was also mentioned in the WILL. The learned Principal District Judge,
Coimbatore in his judgment relied on the ruling of this Court in the case of
Jayalakshmi Ammal vs K.Lakshmi Iyengar reported in 1992 (2) Law Weekly
523, wherein it is held that the Court is not entitled to make surmises and
assume anything contrary to the document (WILL). In this case, Ex.B-1 and
Ex.B-2 were relied by the learned Principal District Judge, Coimbatore
wherein the Plaintiff herself stated that she married against the wishes of her
family. That is the reason why, the Plaintiff was excluded in the Will and she
was not given any share in the property. Further, the WILL came into
existence prior to the passing of the amendment to Section 6 of Hindu
Succession Act. Therefore, as on the date of execution of the WILL (Ex.B-4)
dated 25.11.1988, Section 6 of the Hindu Succession Act has not been
amended giving a right, share and interest to the female heirs. Therefore,
Section 6 of the Hindu Succession Act, after amendment, has no bearing for a
decision in this appeal.
36. The learned Principal District Judge, Coimbatore on re-
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appreciation of evidence rejected the finding of the learned I Additional
Subordinate Judge, Coimbatore regarding the genuineness of the WILL and
held that it was duly proved. The Appellate Court is right in rendering a
finding that the WILL is genuine. As rightly pointed out by the learned
Counsel for Respondent-1, for argument sake if it is accepted that the right
hand thumb impression of the testator was made in the WILL it will not
invalidate the due execution of the Will. The fact that Dr. Kumar and
Defendant-8 Thulasiammal, D/o.Dasa Gounder are witnesses to the execution
of the Will along with Jayagopal, D.W-3 itself is sufficient to hold that the
Will is genuine. Under those circumstances, the substantial questions of law
are answered in favour of the Respondents and against the Appellant.
In the result, the Second Appeal is dismissed. The Judgment of the
learned Principal District Judge, Coimbatore in A.S.No.17 of 2012 dated
25.02.2013 is upheld. Consequently, connected miscellaneous petition is
closed. No Costs.
09-01-2025
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-speaking Order
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To
1. The I Additional Subordinate Judge,
Coimbatore.
2. The Principal District Judge,
Coimbatore.
3. The Section Officer,
Vernacular Record Section,
Madras High Court,
Chennai – 600 104.
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SATHI KUMAR SUKUMARA KURUP, J
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Judgment in
09-01-2025
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