Madras High Court
Sidalatchoumy vs / on 17 July, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.270 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 08.07.2025
Pronounced on : 17.07.2025
Coram:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Appeal Suit No.270 of 2022
and
C.M.P.No.10170 of 2022
Sidalatchoumy,
W/o Velayudame,
No.16-B, Samimudaliyar Street,
Muthialpet, Puducherry 605 003. .. Plaintiff/Appellant
/versus/
Rukumani(died)
W/o Late Ramasamy,
No.G/G/8 & 9, Rukumani Stores,
Cheeta Camp, Mumbai 400 088.
1.Gowri,
W/o Ramalingam,
No.23, Gandhi Street,
Kadirkamam, Puducherry 605 009.
2.Vetrivel,
S/o Late Ramasamy,
No.G/G/8 & 9 Rukumani Stores,
Cheeta Camp, Mumbai 400 088.
1/12
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A.S.No.270 of 2022
3. Lalitha,
S/o Late Ramasamy,
No.G/G/8 & 9 Rukumani Stores,
Cheeta Camp, Mumbai 400 088. ..Defendants/Respondents
Prayer: Appeal Suit has been filed under Section 96 of C.P.C. 1908, to
set aside the judgment and decree dated 17.11.2021 passed in O.S.No100 of
2011 on the fie of the III Additional District Judge, Puducherry and allow
the above First Appeal.
For Appellant :Mr.A.Raymond for
M/s Babu Rangasamy Associates
For Respondents :M/s G.Sumitra for R1
Notice Returned, not known
(steps not taken) for R2 and R3
-----
JUDGMENT
Suit for preliminary decree of partition filed by the appellant herein in
O.S.No.100 of 2011 dismissed by the trial court on 17.11.2021. Hence, the
present appeal.
2. The case of the appellant as found in her plaint is that the suit
schedule property belongs to her father Ramasamy. While her mother
Camalatchy @ Canagam was alive and her marriage with Ramasamy was in
subsistence, the first defendant Rukumani became intimate to her father
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while he was carrying on business at Mumbai. Ramasamy had flourishing
business in Mumbai and had purchased properties at various places in
Pondicherry, Tamilnadu and Mumbai. The schedule mentioned property
was purchased by him and let out for rent. The plaintiff was put in
possession of the house purchased by her father at Muthialpet. Pondicherry.
Her father died on 27.06.2007 at Mumbai. The defendants did not inform
about his demise to the plaintiff and he died intestate. Later, when she
caused notice to the defendants, claiming share in the properties of her
father, there was no reply from the defendants. Hence, the present suit in
respect of two properties morefully mentioned in the schedule of the plaint.
3. Before trial, the first defendant died. Her daughters and son as
defendants 2 to 4 contested the suit denying the allegations made in the
plaint. According to them, Ramasamy Mudaliyar is her father and absolute
owner of the suit schedule property. During his life time, Ramasamy
bequeathed the suit property in favour of his wife Rukumani and his
daughter Gowri through Will dated 23.09.1998. It is a registered Will in
which life interest was given to his wife Rukumani and after her life vest to
the second defendant absolutely. The first defendant released her life
interest through a release deed dated 06.09.2007. Thereafter, the second
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defendant had put up a first floor construction in the suit property by
spending about Rs.5,00,000/- and let out the property for rent.
4. The notice issued by the plaintiff seeking partition was suitably
replied. The plaintiff who eloped with a man of her choice against the will
and wish of the father was never in good terms with her father. She never
lived with her father in Mumbai nor the plaintiff hold any affection to her
father during his life time. Thus, the suit for partition is strongly opposed on
the strength of Will executed by Ramasamy.
5. The trial Court based on the pleading framed the following issues:
1. Whether the suit is under valued for the purpose of court fee?
2. Whether the plaintiff is entitled for partition?
3. Whether the plaintiff is entitled for judgement and decree?
4. Whether the plaintiff is entitled for preliminary decree as prayed for ?
5. To what other relief, the parties are entitled to?
6. The trial Court earlier framed five issues and later two additional
issues on 22.03.2021 and 29.10.2021respectively as under:-
1. Whether the plaintiff is entitled for mesne profit or not?
2. What is the law applicable to the parties in this case?
7. To prove the case, the plaintiff examined herself as P.W.1 and 11
documents were marked on her side as Exs.A1 to A11. Six witnesses were
examined on the side of the defendants as DW1 to DW6 and 13 documents
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were marked as Exs.B1 to B13 in support of the defendants.
8. The trial Court dismissed the suit upholding the genuineness of the
Will of Ramasamy propounded by the defendants.
9. Being aggrieved, the appeal is filed on the ground that the property
of Ramasamy has to be succeeded not based on the testament. The Will
dated 23.09.1998 not been properly proved in the manner known to law.
There is no evidence to show that Ramasamy had executed the Will when
he was in good disposing state of mind. The attesting witnesses not been
examined under Section 68 of the Evidence Act. DW7 does not satisfy the
requirement under Section 69 of the Evidence Act to prove the due
execution of the Will in the presence of Witnesses. The Will is only in
respect of the suit property and not other properties left by Ramasamy. It is
only in favour of the second wife and daughter born through the second
wife. The first wife and her daughter been totally neglected and no reason
for such exclusion. In the absence of admissible evidence to prove the Will,
the trial Court ought to have allotted half share to the plaintiff being the
legal heir of Ramasamy.
10. The learned counsel appearing for the appellant reading through
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the testimony of DW7 submitted that this witness claims that he is
conversant with the signature of the Siva Subramanian and Arumugam. He
could only say that Arumugam is a Handloom Weaver and he used to visit
his place for purchase of lungi. At that time, the other witness Siva
Subramanian also used to come to Arumugam's house. There is no evidence
to prove that D.W.7 had acquaintance with the signature of Arumugam and
Siva Subramanian. While death of Arumugam is accepted, no attempt was
made by the defendants to examine the other attesting witness Siva
Subramanian. Without examining Siva Subramanian, to satisfy the
requirement under Section 68 of Evidence Act, the defendant had resorted
to Section 69 of Evidence Act and examined D.W.7 who has not
satisfactorily proved how he had acquaintance with the signatures of Siva
Subramanian and Arumugam. The other witness D.W.5 is able to identify
the signature of Ramasamy, but not the signature of the witnesses to Ex.B.2
Will. D.W.4 claims to be Document Writer, but admits that he did not write
Ex.B.2. Therefore, according to the learned counsel for the appellant, in the
absence of proof for the Will of Ramasamy, the property has to devolve
equally on all the legalheirs of Ramasamy.
11. Per contra, the learned Counsel appearing for the respondents
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submits that the Will of Ramasamy which is marked as Ex.B.2 duly proved
through persons who are conversant with the signature of Ramasamy
Mudaliar and the witnesses Siva Subramanian and Arumugam.
12. That apart, the Sub Registrar of Registration Department,
Pondicherry also been summoned and examined as D.W.3. The Register
containing the thumb impression of Ramasamy was marked. If really, there
is any doubt about the registered Will, the plaintiff ought to have adduced
contra evidence to disprove the veracity of the Will.
13. In this case, the plaintiff had not examined witnesses other than
herself. Neither Exs.A1 to A11 disprove the case of the defendant
regarding the registered Will dated 23.09.1998 marked as Ex.B2. He
further submits that apart from Will, the house tax receipt, electricity card
would go to show that the property is in possession and enjoyment of the
second defendant after her mother released her life interest in her favour and
came to her absolutely after the death of her mother.
14. The point for consideration is that whether Ex.B2 Will has been
duly proved in the manner known to law.
15. The relationship between the parties is not disputed. The suit
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property is claimed to be the property of Ramasamy which is reflected in his
Will marked as Ex.B2 dated 23.09.1998. In the Will, he claims that he
purchased the property in the year 1971 from one Murugesa Chettiar and his
son Ponniah. The Will Ex.B2 is a registered document and its registration
been proved through D.W.3, the Sub Registrar of Pondicherry. Under this
Will, Ramasamy had bequeathed the property to his daughter Gowri,
reserving the life interest to his wife Rukumani. The Will is witnessed by
Arumugam, S/o.Kuppusamy and Siva Subramanian, S/o.Adhimoolam.
16. Though the death certificate of Ramasamy is not produced,
parties admits that Ramasamy died. To prove the Will, the Will been
introduced through D.W.1/ husband of the second defendant, who is neither
a party to the document nor beneficiary under the Will. The second witness
Sivakumar claims that he was attached to one Kothandaraman, a Document
Writer and he was present when the Will of Ramasamy was prepared by
Kothandaraman. Though he claims that he was present at the time of
executing the Will and saw Ramasamy signed the Will and thereafter the
witnesses signed. His evidence cannot be equated to the evidence of an
attesting witness to the document.
17. D.W.3 is the Sub Registrar of Pondicherry who had deposed
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about the due registration of the Will at Registrar Office and affixture of
thumb impression by Ramasamy in the register maintained at Registrar
Office. D.W.4 is yet another Assistant to a Document Writer who claims to
have witness the release deed of first defendant in favour of the second
defendant. D.W.5 is an Advocate practising in Pondicherry Courts. He had
identified the signature of Ramasamy found in Ex.B2. He claims that he
know Ramasamy for 20 years. Therefore, he could identify the signature of
Ramasamy found in Ex.B.2. D.W.6 is a Junior Assistant in the Sub
Registrar Office and had brought the register containing the thumb
impression of Ramasamy affixed while registering the Doc.No.342 of 2006
which is sale deed executed by Ramasamy in favour of one Lakshmanan on
26.06.2006. In the cross examination, D.W.6 admits that in Ex.B.12, the
details of Ramasamy Mudaliar is not recorded. So his evidence and Ex.B.12
does not lend any support either to the case of the plaintiff or to the
defendant. D.W.7 is yet another witness by name Sivakumar, son of
Aadhimoolam. The witness is friend of D.W.1. He had deposed that he was
present when Ex.B.2 was prepared and signed by Ramasamy and two
witnesses. He claims that he know Arumugam as well as Siva Subramanian
in the course of his business. The trial Court taking into consideration the
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evidence of D.W.7 had held that Will been proved as per Section 69 of
Evidence Act.
18. The appellant suspects and attack the testimony of D.W.7 as
unreliable witness. Since some explanation been given by D.W.7 how he
had acquaintance with Arumugam and Siva Subramanian and know about
the signatures and identified it as their signatures affixed in Ex.B.2 Will, it
is to be accepted that by preponderance of probability, the defendant has
proved the Will.
19. In the absence of contra evidence, to impeach the evidence of
D.W.7 and D.W.3, a duly registered document in the manner known to law
and corroborated by witnesses who are likely to have witnessed its
execution and deposed that they have seen the execution of the document.
Their testimony cannot be rejected as not proved when there is no
suspicious circumstances surrounding the due execution of the Will.
20. Therefore, having proved the Will of Ramasamy executed in
favour of his daughter born to the second wife, the second defendant, the
plaintiff who is the first wife's daughter and the appellant herein cannot still
claim share in this property without including the other properties of
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Ramasamy, which she claims to have left by him
21. In view of the above fact, this appeal suit deserves to be
dismissed. Accordingly, this appeal suit is dismissed. No costs.
Consequently, the connected miscellaneous petition is closed.
17.07.2025
Index:yes/no
Internet:yes/no
Speaking order/non speaking order
Neutral citation:yes/no
Vv
To
1.The III Additional District Judge, Puducherry.
2.The Section Officer, V.R.Section, High Court, Madras.
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DR.G.JAYACHANDRAN,J.
Vv
Pre-delivery judgment made in
17.07.2025
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