Madras High Court
S.Gopalasamy vs V.K.Shanmuga Sundram on 24 March, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
A.S.No.1158 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 24.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
A.S.No.1158 of 2024
and CMP.No.29867 of 2024
S.Gopalasamy ... Appellant
Versus
V.K.Shanmuga Sundram ... Respondent
Prayer: Appeal filed under Section 96 of Code of Civil Procedure, to set aside the
judgment and decree dated 10.06.2024 in O.S.No.1296 of 2022 on the file of I
Additional District Court, Coimbatore.
For Appellant : Mr.P.K.Harinath Babu
For Respondent : Mr.M.Varun Kumar
JUDGMENT
Challenge has been made to the decree and judgment of the Trial Court
dismissing the suit for declaration and permanent injunction.
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2.Brief facts in filing this appeal are as follows:
2.a. It is the case of the plaintiff that the suit properties were originally
owned by his father Chennimalai Gounder, he had three daughters namely
Lakshmi, Rathinam and Madhuramani and two sons namely, the plaintiff and
Pattulingam. The total extent of the properties originally owned by his father is 2
acres 88 cents. The second item/house is purchased by him on 10.12.1944. During
his lifetime, he has executed a will dated 22.06.1972 bequeathing Item No.1 in
favour of the plaintiff and in respect of second item, plaintiff was bequeathed with
half share and the remaining half share was bequeathed to one of the sister namely
Lakshmi/mother of the defendant. It is the contention that Chennimalai Gounder
died on 28.06.1983. Therefore, as per the will, the plaintiff is entitled to the suit
properties. The plaintiff out of 2 acres 88 cents has sold the properties to
Ranganathan on 12.05.1995 to an extent of 70 cents, Sundarasamy on 12.06.1996
to an extent of 20 cents, Jeeva Selvaraj on 19.06.1996 to an extent of 52 cents,
C.Karuppasamy on 11.04.2008 to an extent of 21 cents, Jaganathan on 12.06.1996
to an extent of 58 cents and President Villankurich Village Panchayat to an extent
of 11 cents. According to the plaintiff, out of the 2 acres 88 cents, an extent of
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2.32 acres have already beeen sold and remaining 56 cents is in possession of the
plaintiff. Patta also stands in the name of the plaintiff. Therefore, he sought for
declaration and permanent injunction. Written statement has been filed denying
the will and the suit is also barred for non-joinder of necessary parties.
2.b. Based on the above pleadings, the Trial Court has framed the following
issues:
i) Whether the plaintiff is entitled to the relief of declaration as prayed for?
ii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed
for?
iii) Whether the alleged will dated 22.06.1972 is true, valid and genuine?
iv) Whether the alleged sale deeds pleaded by the plaintiff are true and valid?
v) To what other relief the plaintiff is entitled to?
2.c. On the side of the plaintiff, the plaintiff was examined as PW1 and
Exs.A1 to A20 were marked. On the side of the defendant, the defendant was
examined as DW1 and no exhibits were marked.
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2.d. The Trial Court based on the oral and documentary evidences had
dismissed the suit. Challenging the said decree and judgment, the present appeal is
filed.
3. The only contention of the learned counsel for the appellant is that the
plaintiff has already sold the properties based on the will. The said will has not
been challenged all these days, therefore, the will has to be presumed to be valid.
Merely because the attesting witnesses have not been examined, the right of the
plaintiff cannot be defeated. Hence, seeks for allowing this appeal.
4. Whereas, the learned counsel for the respondent submitted that the
plaintiff traced his right to the will Ex.A3 and such will has not been proved in the
manner known to law, therefore, the Trial Court has rightly dismissed the suit.
Hence, prayed for dismissal of this appeal suit.
5. In light of the above submissions, now, following issue arises in this
appeal:-
i) Whether the plaintiff is entitled to declaration and permanent injunction without
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proving the will in the manner known to law?
Point (i)
6. At the outset, this Court is of the view that merely because the properties
have been sold by the plaintiff, the same will not validate the will. It is not
disputed by both sides that the properties are originally owned by one
Chennimalai Gounder, father of the plaintiff. The defendant is the son of one
Lakshmi/sister of the plaintiff. Chennimalai Gounder, apart from the plaintiff and
the defendant's mother had two other daughters and one son. Further, they have
not been made as a party to the suit.
7. The plaintiff traces his right only on the basis of an unregistered will
Ex.A3 dated 22.06.1972. On perusal of Ex.A3 and evidences makes it clear that
the will has not been proved as required under law. None of the attesting witnesses
have been examined to admit the will in evidence. The plaintiff has not taken any
steps to examine anyone of the attesting witnesses. Therefore, once the will has
not been established in the manner known to law, it cannot be admitted in
evidence. Even assuming that the attesting witnesses are not available, the plaintiff
ought to have taken steps to examine any other person who is acquainted with the
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signature of the attesting witnesses to comply with Section 69 of Indian Evidence
Act or Section 68 of Bharatiya Sakshya Adhinayam, 2023 which has not been
resorted so by the plaintiff. Further, no steps have been taken to prove the will in
any other manner by other evidences. Therefore, as long as the will has not been
proved by examining the attesting witnesses, the plaintiff cannot seek declaration
and permanent injunction based on the will merely on the ground that some
properties have already been sold by him long back.
8. Such view of the matter, I do not find any merits in this appeal and the
appeal suit stands dismissed. No costs. Consequently, connected miscellaneous
petition stands closed.
24.03.2025
Index : Yes / No
Speaking/non speaking order
dhk
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To,
1. The I Additional District Judge,
I Additional District Court
Coimbatore
2.The Section Officer
VR Section, Madras High Court
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N. SATHISH KUMAR, J.
dhk
24.03.2025
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