Madras High Court
Rathinam : Died/1St vs Settu on 13 March, 2025
SA(MD)No.771 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 13/03/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.771 of 2009
Rathinam : Died/1st Appellant/
Plaintiff
1.R.Thamarai
2.R.Kannan
3.R.Kannagi
4.R.Karthick : Appellants 1 to 4/
Appellants 2 to 5/
Lrs of the Plaintiff
Vs.
1.Settu
2.Angammal
3.Parimanam
4.P.Balasubramanian
5.P.Sivakumar
6.P.Periyasamy : Respondents/Respondents/
Defendants
PRAYER:-Second Appeal is filed under Section 100 of
the Civil Procedure Code, to set aside the judgment and
decree dated 30/04/2009 made in AS No.176 of 2008 on the
file of the Court of the Principal District Judge,
Tiruchirappalli, confirming the judgment and decree,
dated made in OS No.402 of 2003 on the file of the II
Additional Subordinate Judge, Tiruchirappalli, and pass
such further or other orders.
For Appellants : M/s.J.Mariya Roseline
For R1 and R2 : No appearance
For R3 to R6 : Mr.I.Vel Pradeep
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SA(MD)No.771 of 2009
J U D G M E N T
This Second Appeal is filed against the judgment and
decree, dated 30/04/2009 passed in AS No.176 of 2008 by
the Principal District Judge, Tiruchirappalli, confirming
the judgment and decree, dated passed in OS No.402 of
2003 by the II Additional Subordinate Judge,
Tiruchirappalli.
2.The averments in the plaint in brief:-
Kulanthivelu Muthiraiar married one Ammani Ammal.
She died without any issues. So, he married one Mottai
Ammal. During the subsistence of the second marriage,
again, he married Kunjammal. Through Kunjammal, he had a
child by name Mariyayee. When she was aged about 6,
Kunjammal died. Again, he married during the subsistence
of the second marriage one Angammal as the 4th wife. That
Angammal is shown as the second defendant in the suit.
Mariyayee was married to one Parimanam, the third
defendant herein. The defendants 2 and 3 are sister and
brother. The defendants 4 to 6 are the childrens of
Mariyayee and Parimanam. Mariyayee died five years back.
Kulandivelu Muthiraiar purchased the property in the name
of the second defendant Angammal for her maintenance.
Kulandaivelu Muthiriar's elder brother was one Malaiyandi
Muthiriar. The plaintiff and the first defendant are the
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brother's son of Kulandaiveu Muthiriar. Kulandaivelu
Muthiriar executed a Will, on 30/09/1977 in favour of the
plaintiff and the first defendant. It was validly
executed, acted upon after the death of Kulandaivelu
Muthiriar, since he died on 08/07/1987.
3.After that, the plaintiff and the first defendant
were in enjoyment. Even in the Will, Kulandaivelu
Muthiriar made a provision for the maintenance of the
second wife Mottai Ammal. Mottai Ammal died 10 years
back. So, except the plaintiff and the 1st defendant, no
other persons have any right or title over the
properties. The plaintiff demanded partition of half
share with the first defendant. At that time, the
defendants 2 to 6 made claim over the properties. So, the
suit is laid for partition and separate possession of his
half share and costs.
4.Statement filed by the third defendant:- The Will,
dated 30/09/1977 was canceled by another Will, dated
05/9/1986. By that document, he bequeathed the suit
property in favour of the defendants 4 to 6. The Will.
dated 30/09/1977 is no more in existence, never came into
force. So, neither the plaintiff, nor the first defendant
has got any right in the properties. Even the original
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Will was not produced in the court. The plaintiff and the
first defendant did not behave properly with Kulandaivelu
Muthiriar as expected. So the Will was validly cancelled
by Kulandaivelu Muthiriar. Prays for dismissal of the
suit.
5.On the pleading of both parties, The trial court
framed the following issues:-
(1)Whether the Will, dated
30/09/1977 is true and valid?
(2)Whether the Will, dated
05/09/1986 is true, valid and acted
upon?
(3)Whether the plaintiff is
entitled to the relief of partition as
prayed for?
(4)To what relief, the plaintiff
is entitled?
6.On side of the plaintiff, he was examined himself
as PW1 and 4 documents were marked. On the side of the
defendants, the third defendant was examined as DW1 and 5
documents marked.
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7.At the conclusion of the trial process, the trial
court dismissed the suit without costs. Against which,
Appeal in AS No.176 of 2008 was filed before the
Principal District, Tiruchirappalli, which also came to
be dismissed, concurred with the judgment and decree of
the trial court.
8.Against which, this second appeal is preferred by
the appellants.
9.At the time of admission, the following
substantial questions of law were framed:-
(1)Whether the courts below are right in
holding that when the Will is admitted still
it requires proof of execution under Section
68 of Indian Evidence Act?
(2)Whether the Courts below are right in
holding that the appellants have failed to
prove the execution of Will when under
Section 68 of Indian Evidence Act, admitted
fact need not be proved?
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10.Heard both sides.
11.Before we enter into the main issue, the admitted
facts may be kept in mind. One Kulanthivelu Muthiraiar
was married to one Ammani Ammal. She was his first wife.
There was no issue to them. Later, Kulanthaivelu
Muthiraiar married Mottai Aammal as second wife. During
the subsistence of the second marriage, he married one
Kunjammal. Through Kunjammal, he had a daughter by name
Mariyayee. Mariyayee was married to the third defendant
herein. To them, the defendants 4 to 6 were born. Later,
Kulanthivelu Muthiraiar married the second defendant
Angammal as is 4th wife. The defendants 3 and 4 are
brother and sister. The first wife Ammani Ammal died
without any issues. Now the third wife, Kunjammal died.
Now Mariyayee is also dead. This is the admitted facts of
both sides.
12.Now the plaintiff says that the third marriage
performed by Kulanthivelu Muthiraiar with Kunjammal and
later with Angammal are not valid under law, since the
second marriage between him and Mottai Ammal was
subsisting on the date of the subsequent marriages. We
need not concentrate much upon this point, whether all
the marriages were invalid under law. This issue is
beyond the scope of the subject matter.
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13.Now, the plaint is based upon the Will executed
by the Kulandaivelu Muthiraiar, on 30/09/1977 bequeathing
the suit property in favour of the plaintiff and the
first defendant herein. Now, according to him, a
provision was made for the maintenance of Mariyayee. Now
Mariyayee is also no more. Now, they became the absolute
owner of the property. Partition must be effected between
the plaintiff and the first defendant.
14.The first defendant remained ex-parte for obvious
reasons. The defendants 2 to 6 alone contested the
matter. According to them, Kulandaivelu Muthiraiar during
his life time, thought it fit to cancel the Will in
favour of the plaintiff and the first defendant and
executed the Will in their favour by cancelling the
earlier Will.
15.It is a short statement. Based upon the same, the
trial court framed the issues. At the conclusion of the
trial process, the trial court accepted the Will under
Ex.B2, dated 05/09/1986 in favour of the defendants 4 to
6 and dismissed the suit filed by the plaintiff. Against
which, appeal was preferred before the District Court, it
also came to be dismissed by confirming the decree and
judgment of the trial court. Against, which this second
appeal is preferred.
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16.The fact that the suit property originally
belonged to Kulandaivelu Muthiraiar is admitted by both
sides. Which one of these two Wills are genuine, true or
acted upon is the point to be considered. Now, both the
courts concurrently held that Ex.B2 was validly executed
while Kulandaivelu Muthiraiar was in sound disposing
state of mind, thought it fit to cancel Ex.A1 and validly
executed Ex.B2. Now the substantial question of law is
framed as if the trial court as well as the appellate
court did not consider the fact that by virtue of
execution of Ex.B2, the execution of Ex.A1 was admitted
by Kulandaivelu Muthiraiar himself, so there is no
necessity for the plaintiff to examine any one of the
attesting witnesses to Ex.A1 to prove the Will as per
section 68 of the Indian Evidence Act.
17.When the execution of both documents are in
dispute, it is the primary duty of the plaintiff to prove
the execution of Ex.A1 by examining any one of the
attesting witnesses. Dehors, the cancellation deed and
the execution of the Will in favour of the defendants 4
to 6. Merely because the recital will show the
cancellation by the subsequent Will, the duty cast upon
the propounder of the Will to prove the same by examining
any one of the witnesses is not taken away.
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18.Now in this context, we will go to the evidence
of PW1. He would say that the Will, dated 05/09/1986 is a
fabricated one. Kulandaivelu Muthiraiar never cancelled
the Will, dated 30/09/1977 in their favour. When that is
his consistent and strong plea, he ought to have examined
any one of attesting witnesses to prove Ex.A1. The
contention that since the execution of Ex.A1 is admitted
in Ex.B2, he need not examine any one of the attesting
witnesses is not correct on record. As mentioned in his
evidence, he strongly denies the execution of Ex.B2.
19.Now we will go further. He would say that the
original Will was missing, so he produced the certified
copy. When the plaintiff traces his title and right on
the basis of the Will, unless the non-availability of the
original document is established, secondary evidence
under section 65 of the Indian Evidence Act is not
permissible under law. Here, absolutely there is no
evidence to show that the original document was misplaced
or missing. This was pointed out by the trial court as to
the inconsistent plea. In this regard, he would say that
even before filing of the suit, the original document was
missing. But during the course of cross examination, he
will contradict himself by saying that the original Will
was retained by Kulandaivelu Muthiraiar. So, the non-
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availability or missing of the original document was not
properly established by the appellants/plaintiffs. So,
this is the serious issue, which was rightly taken up by
the trial court and the appellate court.
20.During the course of cross examination, he would
admit that Kulandaivelu Muthiraiar executed a deed in
favour Mariyayee and her children bequeathing all of his
properties. So, during his cross examination, he goes
against his pleadings. Again, he would say that the
document, dated 05/09/1986 is not true. So, the
contradictory plea taken by the plaintiff during the
course of the evidence does indicate that he is not
consistent in his plea.
21.Now regarding the availability and non-
availability of the attesting witnesses, he would say
that even before filing of the suit, all the attesting
witnesses were dead. But no death certificates were
produced or no steps were taken to prove that Ex.A1 was
validly executed by Kulandaivelu Muthiraiar, by complying
the provision under section 69 of the Indian Evidence
Act, no steps were taken by the appellant in this regard.
It was validly and correctly appreciated by the trial
court that Ex.A1 was not proved as per law. So, no
interference is called for on that finding.
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22.Now we will go to the evidence on the side of the
defendants. DW1 is the third defendant. As mentioned
above, he is the husband of Mariyayee and the father of
the defendants 4 to 6. He is one of the attesting
witnesses to Ex.B2. He would say that one Venkatachari
has signed as attesting witness. But Venkatachari died.
Kulanthaivelu Muthiriar appeared before the Sub Registrar
and admitted his thumb impression in the Will. After
satisfying the requirement, the Sub Registrar validly
registered the document. At that time, he was hale and
healthy and was in sound disposing state of mind. He was
cross examined to the effect that except A1, no other
document in the form of Will was executed by the
Kulandaivelu Muthiraiar and Ex.B2 is a fabricated
document; The Will under Ex.A1 was already acted upon and
so, Ex.B2 never came into effect.
23.Now we will go to the point of attestation. DW1
even though party to the suit, is not a direct
beneficiary under Ex.B2 and beneficiaries are the
childrens. In the Will, it has been stated that he
already executed a Will in favour of the plaintiff and
the first defendant.
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24.He has narrated the entire life story, which runs
like this. He married one Ammani Ammal first time. She
died without any issue. He married Mottai Aammal as the
second wife. But she separated from him and living
separately. So, he married Kunjammal. Through her,
Mariyayee was born. But within a week from the date of
birth of Mariyayee, Kunjammal died. So, he compelled to
marry Angammal for taking care of the children. She was
taken care by Angammal. Now Mariyayee was married to
Angammal brother's Parimanan(DW1). Now they are happily
living and begotten three children. The properties
absolutely belonged to him.
25.This narration of the life story does indicate
that Kulanthaivelu Muthiraiar was a genuine person and
not a person who indulged in illegally marrying more
woman as projected by the plaintiff.
26.Now he would further say that the reason for the
cancellation of Ex.A1. In 1977, he executed a Will in
favour of the plaintiff and the first defendant. But
subsequent to that, the plaintiff and the first defendant
started creating trouble to him. They indulged in selling
the property even during his life time. So, he changed
his mind, bequeathing and creating life interest in
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favour of Mariyayee and after attaining majority, the
grand-children must get absolute right.
27.So, this appears to be a genuine reason stated by
the Kulandaivelu Muthiraiar. We can also verify the
genuineness of this statement or averments in the Will
from the facts brought on record, while examining DW1.
28.It was suggested to DW1 that because of the sale
effected by DW1 and Angammal through A3 and A4, the Will
came into effect in 1977 itself. So, Ex.B2 did not come
into force.
29.As mentioned in the plaint, Kulandaivelu
Muthiraiar died, on 6/07/1987, which fact is not denied
by both sides. When this being so, how the plea was taken
that Ex.A1 came into effect in 1977 itself is not known.
So, this clearly shows that an attempt was made by the
plaintiff and the first defendant to encumber the
property even during the life time of Kulanthaivelu
Muthiraiar.
30.We can take another angle also. When the grand-
childrens are available to Kulandaivelu Muthiraiar, the
reason for execution of Ex.A1 in favour of the plaintiff
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and the first defendant also assumes importance. In Ex.A1
even though, it was not validly proved by the plaintiff,
it has been stated by him that he was taken care by the
first defendant and the plaintiff properly; Neither
Mariyayee nor her childrens have any right in the
property; He has created interest in favour of the 4th
wife and the 2nd wife, of course with some conditions.
31.The reason for exclusion of the his direct legal-
heirs is not specifically stated by him. It has been
simply stated that a provision is made by him to the 4th
wife and no right is available to Mariyayee and her
childrens. Due to the absence of the attesting witness to
the document, this court is not in a position to verify
the mental state of Kulandaivelu Muthiraiar at that time.
32.Now we will go to the reason under Ex.B2 for
cancellation of Ex.A1. It is quite, but natural that a
person will choose his own legal heirs than that of the
brother and childrens of brother. So, this appears,
because of change of mind and character of the first
defendant and the plaintiff, it was cancelled. Why the
first defendant remained ex-parte as mentioned above is
very obvious. Even before this court, he has not appeared
and supported the case of the plaintiff.
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33.So, for all these reasons stated above, both
substantial question of law are answered that no
illegality, either by the trial court or by the appellate
in appreciating Ex.A1 in a proper perspective are
committed. Accordingly, both the substantial questions of
law are answered against the appellants.
34.In the result, this second appeal fails and the
same is dismissed with costs, confirming the judgment and
decree of the courts below.
13/03/2025
Index:Yes/No
Internet:Yes/No
er
To,
1.The Principal District Judge,
Tiruchirappalli.
2.The II Additional Subordinate Judge,
Tiruchirappalli.
3.The Section Officers,
VR/ER Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ILANGOVAN, J
er
13/03/2025
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