Madras High Court
P.Nagaraj (Deceased) vs Rajammal (Died) on 18 July, 2025
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
2025:MHC:1695
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 13.06.2025
Pronounced on : 18.07.2025
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.575 of 2009
in
M.P.No.1 of 2009
1.P.Nagaraj (Deceased)
2.Saraswathi @ Sarasa (Died)
3.P.Radha
4.N.Manoj
5.N.Majosh
6.Marimuthu
7.Rajendran ...Appellants
A1 died, A3 to A5 are brought on
record as LRs of the deceased A3
vide order dated 06.07.2015 in
M.P.No.1 to 3 of 2011.
A2 died, A6 and A7 are brought on
record as LRs of the deceased A2
vide order dated 04.03.2025 in
C.M.P.No.4318 of 2025.
Vs
1.Rajammal (Died)
2.Devaraj
3.Pushpa
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2
4.Raghupathi ...Respondents
R1 died, RR2 to 4 are brought on record
as LRs of the deceased R1 vide order dated
20.01.2025 in C.M.P.No.2448 of 2022.
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.99 of 2006 dated 06.01.2009 on the
file of the Principal District Court, Coimbatore confirming the judgment and
decree passed in O.S.No.380 of 2003 dated 12.09.2005 on the file of the II
Additional Subordinate Court, Coimbatore.
For Appellants : Mr.S.Mukunth, Senior Counsel
For RR2 to 4 : Mr.N.Ponraj
R1 : Died
JUDGMENT
The defendants in O.S.No.380 of 2003 on the file of the II Additional
Subordinate Court, Coimbatore, are the appellants herein.
2.O.S.No.380 of 2003 had been filed by the respondent / Rajammal
who died pending the Second Appeal against the 1st and 2nd appellants /
P.Nagaraj and Saraswathi @ Sarasa respectively who also both died during
the pendency of the Second Appeal seeking a judgment and decree for
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partition and separation of the suit schedule properties into three equal parts
and allot one such part to the respondent / plaintiff and direct the appellants
/ defendants to render true and proper accounts of the income derived by
them from the tenants. The said suit came up for consideration before the II
Additional Sub Court, Coimbatore on 12.09.2005 and the Suit was partly
decreed with respect to A and C schedule properties and dismissed with
respect to B schedule property. Challenging that judgment and decree, the
appellants herein had filed A.S.No.99 of 2006 which came up for
consideration before the Principal District Court, Coimbatore and by
judgment dated 06.01.2009, the Appeal Suit was dismissed and the
judgment and decree of the Trial Court was confirmed. Questioning that
judgment, the defendants have filed the present Second Appeal.
3.The Second Appeal had been admitted on 25.06.2009 on the
following Substantial Questions of Law:
“1.Whether the courts below have not adhered to the
provisions of Section 63(c) of the Indian Succession Act r/w
Section 68 of the Indian Evidence Act.
2.Whether rejection of the Will is correct on the ground
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of misdescription of age of testatrix and mentioning of one of
her son as minor instead of major, when the Will has been
proved as required by law.
3.Whether the courts below are justified in deciding the
validity of gift deeds Ex.B4 and Ex.B5 while the gifts were
acted upon by the beneficiaries.”
4.Heard arguments advanced by Mr.S.Mukunth, learned Senior
Counsel for the appellants and Mr.N.Ponraj learned counsel for the 2nd, 3rd
and 4th respondents.
O.S.No.380 of 2023 (II Additional Sub Court, Coimbatore):-
5.The Suit had been filed by Rajammal who was the respondent in the
Second Appeal. The plaintiff, Rajammal and the defendants, Nagaraj and
Saraswathy @ Sarasa are sisters and brother and children of Pattiammal @
Ammassiammal. There was one another son, Rama Boyan. It had been
stated that during their life time, Rama Boyan and Pattiammal @
Ammassiammal had jointly purchased the A schedule property by a
registered sale deed dated 04.11.1947. The A schedule property is land and
building measuring 4851 sq.ft. at Sowripalayam Ward, Coimbatore. It had
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been stated that the brother of the plaintiff and the defendants, Rama Boyan
died intestate and thereafter, the plaintiff and the defendants and their
mother became absolute owners of A schedule property. It had been further
stated that on 20.05.1958, Pattiammal @ Ammassiammal and the plaintiff
Rajammal jointly purchased the B schedule property under registered sale
deed dated 20.05.1958. It had been stated that after the death of Pattiammal
@ Ammassiammal, the plaintiff and the defendants had become absolute
owners of the 1/2 share belonging to their mother. The B schedule property
is vacant land measuring 2034 sq.ft. at Ramakrishnapuram, Sowripalayam
Village, Coimbatore. It had been further stated that the mother of the
plaintiff Pattiammal @ Ammassiammal had purchased the property in C
schedule on 02.02.1970 under a registered sale deed. The C schedule
property are houses bearing Door Nos.214 to 220 in land measuring 19166
sq.ft. at Sowripalayam Village, Coimbatore.
6.It had been further stated that the mother Pattiammal @
Ammassiammal died intestate on 25.03.200. It had been contended that the
plaintiff and the defendants alone are entitled to her share in the properties.
It had been stated that the plaintiff was entitled to an undivided 1/3rd share
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in the suit schedule properties. It had been stated that she had sought
partition but the defendants had refused to partition the properties. She
issued an advocate notice on 27.06.2002. It had been stated that she issued
another notice on 06.07.2002. A reply was received on 19.07.2002, wherein
it had been stated that the mother Pattiammal @ Ammassiammal had
executed two settlement deeds and a Will on 10.09.1979, 06.01.1999 and
05.07.1996 respectively. It had been stated that two settlement deeds were
in favour of the 2nd defendant and the Will was in favour of the 1st
defendant. It had been contended by the plaintiff, that the said Will and the
settlement deeds were forged and fabricated documents. It was under those
circumstances that the suit had been filed seeking partition and separate
possession of the A, B and C schedule properties.
7.The defendants had filed their written statement admitting to the
manner in which the suit schedule properties had been acquired. It had been
stated that the funds for the purchase had been provided by the 2 nd defendant
by pledging the jewels of Rama Boyan's wife. It had been stated that the
plaintiff had a recalcitrant attitude towards Pattiammal @ Ammassiammal
throughout. It had been stated that she did not die intestate. She executed
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documents with respect to the properties. It had been stated that the plaintiff
and Pattiammal @ Ammassiammal were enjoying the properties. It had been
stated that the two settlement deeds and the Will had also been executed by
Pattiammal @ Ammassiammal with respect to her share of the properties.
The A schedule property was settled in favour of the 2nd defendant by a gift
deed dated 06.01.1999 registered as Document No.23 of 1999. It had been
stated that Pattiammal @ Ammassiammal had also executed a Will dated
05.07.1996 registered as Document No.73 of 1996. It had been stated that
under the Will her share in the properties were bequeathed to the 1 st
defendant. It had been further stated that the 1st defendant was absolutely
entitled to the C schedule property. The claim of the plaintiff that she was
entitled to an undivided 1/3rd share was denied and disputed. It was claimed
that the suit should be dismissed.
8.On the basis of the pleading, the learned Trial Judge, had framed
the following issues:
i).Whether A schedule property belonged absolutely to
the mother of the plaintiff?
ii).Whether the mother of the plaintiff had executed
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settlement deed on 10.09.1979 in favour of the 2nd defendant?
iii).Whether the mother of the plaintiff had executed a
Will dated 05.07.1996 and whether the said Will was true and
valid?
iv).Whether the plaintiff was entitled to an undivided
1/2 share in the B schedule property?
v).Whether the plaintiff was entitled for partition as
sought in the plaint?
vi).Whether the plaintiff was entitled to the relief of
rendition of accounts?
vii).To what other reliefs was the plaintiff entitled to?
9.During the course of trial two witnesses were examined on the side
of the plaintiff. The plaintiff was examined as PW-1 and one Selvaraj was
examined as PW-2. On the side of the defendants, the 1st defendant Nagaraj
was examined as DW-1 and Jayabal was examined as DW-2. An Assistant,
Komala, from the Sub Registrar Office was examined as DW-3 and one
Rajendran was examined as DW-4 and the 2nd defendant was examined as
DW-5.
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10.The plaintiff marked Exs.A1 to A11. These included the sale
deeds dated 04.11.1947, 20.05.1958 and 02.02.1970 as Exs.A1 to A3. The
notices exchanged between the parties as Exs.A5 to A8 and A10. The copy
of the Will dated 05.07.1996 was marked as Ex.A11. The defendants
marked Exs.B1 to B33. The sale deeds dated 04.11.1947, 20.05.1958 and
02.02.1970 were marked as Exs.B1 to B3. The settlement deeds dated
10.09.1979 and 06.01.1999 were marked as Exs.B4 and B5. The original
Will dated 05.07.1996 was marked as Ex.B7. Further documents were
marked relating to property tax receipts and electricity charges.
11.The learned II Additional Sub Judge, Coimbatore, while
appreciating the evidence had observed that Pattiammal @ Ammassiammal
had executed two separate settlement deeds and also a Will. It was further
observed that the settlement deed in Ex.B6, had not been proved in manner
known to law. Further, the Will in Ex.B7 had also not been proved in
manner known to law. It was not clear whether the Will had been canceled
and thereafter, the settlement deed had been executed in favour of the 2nd
defendant. It was also stated that it was not clear whether the A and C
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schedule properties had been settled absolutely in favour of the defendants.
It was held that with respect to A schedule property since it had been
purchased by Pattiammal @ Ammassiammal and Rama Boyan by a
registered sale deed dated 04.11.1947 and on the death of Rama Boyan,
Pattiammal @ Ammassiammal had become the absolute owner of the
properties that even though she had executed a Will dated 05.07.1996, she
had further executed another settlement deed in favour of the 2nd defendant
which had not been proved in manner known to law and therefore, it had
been observed that with respect to A schedule property, the plaintiff, 1st and
2nd defendants were entitled each to an undivided 1/3rd share and therefore,
it is partitionable.
12.Similarly, with respect to C schedule property, it had been held
that it had been purchased in the name of the Pattiammal @
Ammassiammal on 02.02.1970 under a registered sale deed. Again since the
Will and the settlement deed had not been proved in manner known to law,
both the documents had been rejected and it was held that on her death, the
property had devolved to the plaintiff, 1st and 2nd defendants in equal shares.
It had thus been observed that with respect to A and C schedule properties,
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the plaintiff would be entitled to an undivided 1/3 rd share. The suit was
dismissed with respect to B schedule property. It had been very
categorically held that B schedule property could not be the subject matter
of any partition. The suit was partly decreed in the aforesaid terms.
A.S.No.90 of 2006 (The Principal District Court, Coimbatore):
13.The defendants filed the Appeal Suit. It must be noted that the
plaintiff had not filed any appeal against the dismissal of the suit with
respect to B schedule property. The first Appellate Court, in judgment dated
06.01.2009 framed points for consideration under Order 41 Rule 30 CPC.
Again the evidence was carefully analysed. It was held that both the Will
and settlement deeds had not been proved in manner known to law. It had
also been further held that since the documents had not been proved in
manner known to law, A and C schedule properties were to be considered as
held in the hands of Pattiammal @ Ammassiammal on the date of her death
and that she died intestate and therefore it was further held that with respect
to A and C schedule properties, the plaintiff and the defendants were each
entitled to an undivided 1/3rd share. However, the observations of the
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learned trial Judge with respect to the B schedule were not interfered with.
The first Appellate Court had therefore dismissed the appeal confirming
partition and separate possession of undivided 1/3rd share with respect to A
and C schedule properties alone and confirming the dismissal of the suit
with respect to B schedule property.
S.A.No.575 of 2009:
14.Challenging that judgment, the defendants had filed the present
Second Appeal.
15.It must be noted that the defendants died during the pendency of
the appeal and their legal representatives had been brought on record as
appellants 3 to 7. The respondent also died during the pendency of the
appeal and her legal representatives were brought on records as respondents
2 to 4.
16.As pointed out earlier, the Second Appeal had been admitted on
the three Substantial Questions of Law.
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17.The 1st first substantial question of law revolves around the
Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the
Indian Evidence Act, 1872.
18.Section 63(c) of the Indian Succession Act, 1925 is as follows:
“63.Execution of unprivileged wills:
(c).The will shall be attested by two or more witnesses,
each of who has seen the testator sign or affix his mark to the
will or has seen some other person sign the will, in the presence
and by the direction of the testator, or has received from the
testator a personal acknowledgment of his signature or mark, or
of the signature of such other person; and each of the witnesses
shall sign the will in the presence of the testator, but it shall not
be necessary that more than one witness be present at the same
time, and no particular form of attestation shall be necessary.”
19.Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 which is
equivalent to Section 68 of the Indian Evidence Act, 1872 is as follows:
“67.If a document is required by law to be attested, it
shall not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution, if there
be an attesting witness alive, and subject to the process of the
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Court and capable of giving evidence:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any document, not
being a will, which has been registered in accordance with the
provisions of the Indian Registration Act, 1908, unless its
execution by the person by whom it purports to have been
executed is specifically denied.”
20.Section 63(c) of the Indian Succession Act, 1925 stipulates that
when a Will is executed, it must be covenanted that the attesting witnesses
affixed their signature in the presence of each other and in the presence of
the testator and had seen the testator signing and all the three of them had
signed together.
21.Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 which is
equivalent to Section 68 of the Indian Evidence Act, 1872 stipulates that the
attesting witnesses must be examined to prove the Will.
22.In the instant case both the Courts below had very categorically
come to a finding that the Will and the settlement deeds had not been
proved in manner known to law. Both the documents had been marked but
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in the absence of clear and cogent evidence that the attesting witnesses had
signed in the presence of the testatrix, it necessarily had to be held that the
Will had not been proved in manner known to law. Even with respect to the
settlement deeds, the documents had not been again proved in manner
known to law. The object of trial is to enable the parties to adduce credible
oral and documentary evidence to substantiate their rival stands. If the Will
or the settlement deeds are relied on by the appellants, then the burden was
on them to prove the said documents in manner known to law.
Unfortunately, the documents were not proved by examining the attesting
witnesses.
23.In (2023) 8 SCC 537, Ramabai Padmakar Patil (Dead) Through
LRs. and others Vs. Rukminibai Vishnu Vekhande and others, the Hon'ble
Supreme Court had held as follows:
“5. ........ it will be useful to briefly notice the legal position
regarding acceptance and proof of a Will. Section 63 of the
Indian Succession Act deals with execution of unprivileged Wills.
It lays down that the testator shall sign or shall affix his mark to
the Will or it shall be signed by some other person in his
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presence and by his direction. It further lays down that the Will
shall be attested by two or more witnesses, each of whom has
seen the testator signing or affixing his mark to the Will or has
seen some other person sign the Will, in the presence and on the
direction of the testator and each of the witnesses shall sign the
Will in the presence of the testator. Section 68 of the Evidence
Act mandates examination of one attesting witness in proof of a
Will, whether registered or not. The law relating to the manner
and onus of proof and also the duty cast upon the court while
dealing with a case based upon a Will has been examined in
considerable detail in several decisions of this Court viz. H.
Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443]
, Rani Purnima Debi v. Kumar Khagendra Narayan Deb [AIR
1962 SC 567] and Shashi Kumar Banerjee v. Subodh Kumar
Banerjee [AIR 1964 SC 529] . It will be useful to reproduce the
relevant part of the observations made by this Court in the
Constitution Bench decision in Shashi Kumar Banerjee [AIR
1964 SC 529] which are as under: (AIR p. 531, para 4)
“The mode of proving a will does not ordinarily
differ from that of proving any other document
except as to the special requirement of attestation
prescribed in the case of a will by Section 63 of the
Indian Succession Act. The onus of proving the will
is on the propounder and in the absence of
suspicious circumstances surrounding the execution
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of the will, proof of testamentary capacity and the
signature of the testator as required by law is
sufficient to discharge the onus. Where however
there are suspicious circumstances, the onus is on
the propounder to explain them to the satisfaction of
the court before the court accepts the will as
genuine. Where the caveator alleges undue
influence, fraud and coercion, the onus is on him to
prove the same. Even where there are no such pleas
but the circumstances give rise to doubts, it is for the
propounder to satisfy the conscience of the court.
The suspicious circumstances may be as to the
genuineness of the signature of the testator, the
condition of the testator's mind, the dispositions
made in the will being unnatural, improbable or
unfair in the light of relevant circumstances or there
might be other indications in the will to show that
the testator's mind was not free. In such a case the
court would naturally expect that all legitimate
suspicion should be completely removed before the
document is accepted as the last will of the testator.
If the propounder himself takes part in the execution
of the will which confers a substantial benefit on
him, that is also a circumstance to be taken into
account, and the propounder is required to remove
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the doubts by clear and satisfactory evidence. If the
propounder succeeds in removing the suspicious
circumstances the court would grant probate, even if
the will might be unnatural and might cut off wholly
or in part near relations.”
24.In view of that particular fact, I hold that both the Courts below
had correctly come to the conclusion that the Will and the settlement deeds
had not been proved in manner known to law and that the appellants herein
had failed to comply with the stipulations under Section 63(c) of the Indian
Succession Act, 1925 and Section 67 of the Bharatiya Sakshya Adhiniyam,
2023 / Section 68 of the Indian Evidence Act, 1872. This substantial
question of law is answered accordingly.
25.The second substantial question of law relates to the rejection of
the Will on the ground of mis-description of age of the testatrix and
mentioning of one of the sons as minor instead of major. The contents of the
Will assumes significant particularly when written by a mother. There
cannot be any mis-description of her own children. The Will had been
executed by Pattiammal @ Ammassiammal. She had described the 1st
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defendant as her minor son. In fact he had attained the age of majority. This
is a very significant error on the face of the Will. It is not only required that
the document are proved in manner known to law, but it must also be
proved that the testatrix had executed the documents in a sound and
disposing state of mind. Among other aspects which determines whether the
Will was executed when in a sound and disposing state of mind is proper
and correct description of her own family members. When there is a mis-
description of the age or other aspects, then a strong suspicion arises around
execution of the documents. I hold that both the Courts below had correctly
rejected that no right had flowed under the Will and that it had not been
proved in manner know to law.
26.The third substantial question of law is the examination of the
validity of the gift deeds / settlement deeds in Exs.B4 and B5 even though
they had been acted upon by the beneficiaries. However, when the
documents are denied and disputed by one side, in this case, by the
respondents herein / plaintiff in the suit, an obligation was placed on the
party who relies on the said documents to prove them in manner known to
law. The attestors should have been examined as witness. When examined
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they should have tendered cogent evidence. If the documents are not proved
in manner known to law, then its very execution is suspicious. No right can
flow from such documents. The Courts below were indeed correct in
insisting proof of the execution of the documents and in the absence of such
proof, were again correct in rejecting the said documents.
27.It is not the case of the appellants that opportunity was not granted
during the course of trial to adduce evidence to prove either the Will or the
settlement deeds. Five witnesses had been examined on the side of the
appellants. Both the appellants who died subsequently during the pendency
of the appeal were examined as witnesses. They were examined as DW-1
and DW-5. But still they did not prove the Will or the settlement deeds in
manner known to law.
28.I hold that the Courts below were justified in examining the
validity of the gift deeds / settlement deeds / Exs.B4 and B5 and rejecting
them since they were not proved in manner known to law even though the
beneficiaries could have acted under them. Unless the documents are
proved, no right would flow to the beneficiaries.
29.In view of the above discussions, I hold that no ground had been
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made to revisit or interfere with the judgments of both the Trial Court and
the First Appellate Court. The findings of the Trial Court had been
confirmed in entirety by the First Appellate Court. The Second Appeal
stands dismissed, however, in view of the relationship among the parties
without costs. Consequently, connected Miscellaneous Petition is closed.
18.07.2025
smv
Index:Yes/No
Speaking/Non-speaking order
Neutral Citation:Yes/No
To
1.The Principal District Court, Coimbatore.
2.The II Additional Subordinate Court, Coimbatore.
3.The Section Officer, VR Section, Madras High Court.
C.V.KARTHIKEYAN,J.
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smv
Pre-Delivery Judgment made in
18.07.2025
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