Madras High Court
P. Sivagnanam vs Ramasamy on 21 November, 2025
S.A.No.592 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 29.08.2025
Pronounced on 21.11.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN
THILAKAVADI
S.A.No.592 of 2020 and
C.M.P. No.12402 of 2020
1. P. Sivagnanam
2. P. Ganesan ...Appellants
Vs.
1. Ramasamy
2. Gopalakrishnan
3. Muthammal @ Muthulakshmi ...Respondents
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
judgment and decree dated 26.11.2019 passed in A.S. No.63 of 2019, on
the file of the Principal District Court, Namakkal, reversing the Judgment
and decree dated 03.07.2019 passed in O.S.No.349 of 2014, on the file of
the Principal Sub Court, Namakkal.
For Appellants : Mr. S. Mukunth, Senior Advocate
for Ms. T.R. Gayathri
for M/s. Sarvabhauman Associates
Page 1 of 17
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S.A.No.592 of 2020
For Respondents : Mr. K.A. Mariappan
JUDGMENT
This Second Appeal is preferred against the judgment and decree
dated 26.11.2019 passed in A.S. No.63 of 2019, on the file of the
Principal District Court, Namakkal, reversing the Judgment and decree
dated 03.07.2019 passed in O.S.No.349 of 2014, on the file of the
Principal Sub Court, Namakkal.
2. The unsuccessful plaintiff before the lower appellate court has
preferred this Second Appeal.
3. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
4. The case of the plaintiffs is that the suit properties belonged to
Karuppayammal by way of succession through her husband by way of
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sale deed dated 09.06.1983. During her life time, she has executed
Ex.A4 Will dated 29.09.1995 in favour of the plaintiffs. According to the
plaintiffs, after the demise of Karuppayammal on 30.09.1995, EX.A4
Will came into force and they are the absolute owners of the suit property
and since the defendants 1 and 2 have made a cloud over the title, the
plaintiffs filed the suit for declaration and permanent injunction.
5. The claim of the plaintiffs was resisted by the defendants by
stating that the 1st defendant is the son and the defendants 2 and 3 are
the grand sons respectively, of the Karuppayammal's sister. The said
Karuppayammal executed a Will in favour of Marimuthu (elder brother
of the 1st defendant) on 17.11.1992 with regard to the items 1 to 3 of the
suit properties. Further, Varudappa Asari, husband of Karuppayammal,
during his life time executed a Will dated 02.07.1957 in favour of
Marimithu and 1st defendant with regard to the properties purchased by
him, which is termed as 4th item of the suit properties. The 5th item of the
suit properties originally belonged to the father of the 1 st defendant and
after his death, the 1st defendant inherited the same. The 6th item of the
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suit properties was purchased by Varudappa Asari and as per Will dated
02.07.1957, the defendants are entitled to the same. The 7th item of the
suit properties belonged to Pappayammal (mother of the 1st defendant),
Wife of Kuppanna Asari, vide settlement deed dated 02.04.1947. Since
Pappayammal died intestate, the 7th item of the suit properties devolves
upon the defendants by way of succession. According to the defendants,
Ex.A4 Will executed in favour of the plaintiffs by Karuppayammal in
respect of the suit properties is a forged one and prayed for dismissal of
the suit.
6. The trial court, after framing the issues and recording the
evidence, decreed the suit vide its judgment and decree dated 03.07.2019
by holding that the plaintiffs are the owners of the suit properties and
directed the defendants to hand over the possession of the suit properties
within a period of three months.
7. Being aggrieved by the judgment and decree passed by the trial
court, the defendants preferred an appeal in A.S. No.63 of 2019 before
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the Principal District Court, Namakkal. The first appellate court, vide its
judgment and decree dated 26.11.2019 allowed the appeal thereby
dismissing the suit filed by the plaintiffs.
8. Challenging the judgment and decree passed by the first
appellate court, the present Second Appeal is preferred.
9. The Second Appeal has been admitted on the following
substantial questions of law.
a) "Whether the lower appellate court was justified in concluding
that Ex.A4 Will has not been proved in accordance with law?
b) Whether the lower appellate court was justified in upholding the
Wills Exs.B3, B4 and B5, in the absence of the original Wills as
well as the evidence of the attesting witnesses?
c) Whether the lower appellate court was right in over looking the
fact that dehors the Will Ex.A4, the plaintiffs would be entitled to
claim the property as heirs of Karuppayammal, in view of Section
15 of the Hindu Succession Act?"
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10. The learned counsel for the appellants / plaintiffs submitted
that, the plaintiffs are entitled to the suit properties by virtue of the Will
executed by the Karupayammal under Ex.A4 dated 29.09.1995. It is
further submitted that the testatrix had every reason to execute a Will in
favour of the plaintiffs with respect to the suit properties which she had
agreed to convey them under the sale agreement executed on 16.07.1992
in favour of the plaintiffs, which was the subject matter of the suit in
O.S.No.71/1993. In spite of the fact that the plaintiffs have proved the
execution of the Will in the manner known to law, the first appellate
court erroneously held that the Will is not genuine, believing the
registration copy of the Wills marked on the side of the defendants. In
fact, the defendants failed to produce the originals of the Wills and also
failed to explain the reason for producing the secondary evidence. It is
further submitted that even in the suit filed by the plaintiffs in
O.S.No.71/1993 for the relief of specific performance against
Karuppayammal, she had not whispered about the execution of Wills in
favour of the defendants, which goes to show that she has not executed
any such Will in respect of Item Nos. 1 to 3 respectively. It is further
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submitted that, the 4th item of the properties was purchased by Varadappa
Asari on 17.03.1959, while so, the alleged Will marked as Ex.B5 in
respect of the 4th item of properties is dated 02.07.1957. Hence, it is not
possible to execute a Will even before Varadappa Asari could have
purchased the property. Finally it is submitted that the Will projected by
the defendants are suspicious and unbelievable. The first appellate court
erred in dismissing the suit filed by the plaintiffs which warrants
interference by this Court.
11. On the other hand, the learned counsel appearing for the
respondents/defendants would submit that, in the suit filed by the
plaintiffs in O.S. No.71/1993 against Karuppayammal for the relief of
specific performance, the said Karuppayammal in her written statement
had stated that the plaintiffs obtained her signatures in blank stamp
papers by giving her sleeping pills. Thereafter, the said Karuppayammal
filed a suit in O.S. No.120/1993 against the plaintiffs for the relief of
permanent injunction. Hence, the Will propounded by the plaintiffs is a
suspicious document, which was not proved by them as per Section 68 of
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Indian Evidence Act, 1872 and Section 63(c) of Indian Succession Act,
1925. The learned counsel appearing for the respondents / defendants
would submit that the legal principles with regard to the proof of a Will
are no longer Res integra. Section 63 of the Succession Act, 1925, and
Section 68 of the Evidence Act, 1872, are relevant in this regard. The
propounder of the Will must examine one or more attesting witnesses and
the onus is placed on the propounder to remove all suspicious
circumstances with regard to the execution of the Will. The intention of
the testator to make testament must be proved. To support his
contentions, he has relied upon the following decisions.
i. H. Venkatachala Iyengar vs. B.N.Thimmajamma and others
reportedin AIR 1959 Supreme Court 443.
ii. Murthy and others vs. C. Saradambal and others reported in
(2022) 3 SCC 209.
iii. Judgment dated 28.07.2025 of Madhya Pradesh High Court in
S.A. No.2510 of 2024 in the case of Rajkumar vs. Vijay Singh.
The first appellate court having considered the materials on record and re
appreciating the facts and law rightly set aside the judgment and decree
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passed by the trial court and dismissed the suit filed by the plaintiffs,
which warrants any interference by this Court.
12. Heard on both sides. Records perused.
13. The solitary controversy raised in this Second Appeal relates to
the genuineness or validity of Ex.A4 Will alleged to have been executed
by Karuppayammal in favour of the plaintiffs on 29.09.1995. The said
Karuppayammal died on 30.09.1995. The case set up by the plaintiffs is
that they are the brother's sons of Varadappa Asari, husband of
Karuppayammal. The said Karuppayammal executed a sale agreement in
favour of the plaintiffs in respect of the suit properties and since she
failed to execute the sale deed, the plaintiffs filed a suit in
O.S.No.71/1993 for the relief of specific performance. Thereafter, since
the said Karuppayammal executed the above mentioned Will in favour of
the plaintiffs in respect of the suit properties, they did not proceed with
the suit in O.S. No.71/1993. While so, the defendants, in order to grab
the properties, have fabricated Ex.B3 to Ex.B5 Wills said to have been
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executed by Karuppayammal and Varadappa Asari in favour of the
defendants.
14. It is not a matter of dispute that, by now different courts have
laid down a number of tests to judge the nature and standard of evidence
required to prove a Will, some of these being that but for the requirement
of Section 63 of the Succession Act and Section 68 of the Evidence Act,
a Will has to be proved like any other document to the satisfaction of a
prudent mind. However, what makes a Will to differ from any other
document is that it speaks from the death of the testator and this aspect
introduces an element of solemnity in the decision of the question
whether the document propounded is proved to be the last Will and
testament of the testator. Further, cases in which the execution of the
Will is surrounded by suspicious circumstances, such as, a shaky
signature, a blurred thumb impression, a feeble mind, an unfair and
unjust disposition of properties and the propounder himself taking a
leading path in the making of the Will under which he receives a
substantial benefit, have to be dispelled by the propounder. These
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suspicions cannot be removed by his mere assertions that the Will bears
the signatures of the testator or that the testator was in a sound and
disposing state of mind. The presence of such suspicious circumstances
makes the initial onus heavier on the propounder. When genuineness of
a Will is in question, apart from execution and attestation of the Will, it is
also the duty of a person seeking declaration about the validity of the
Will to dispel the surroundings suspicious circumstances existing, if any.
Thus, in addition to proving the execution of a Will by examining the
attesting witnesses, the propounder is also required to lead evidence to
explain the surroundings suspicious circumstances, if any. Proof of
execution of the Will would, inter alia, depend thereupon.
15. In the present case, it has to be tested whether the deceased
Karuppayammal, on 29.09.1995 was in sound disposing state of mind
when the fact remains that she died on the next day, i.e., on 30.09.1995.
16. Soundness of mind, for the purposes of contracting, is defined
in Section 12 of the Indian Contract Act, 1872, and which in my view
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would have application in the matter of soundness of mind requisite for
making of a Will as well. As per the said provision,
i. A person is said to be of sound mind, if, at the time of making of
the contract, he is capable of understanding it and of forming a
rational judgment as to its effect upon his interests;
ii. A person who is usually of sound mind, but occasionally of
unsound mind, may not make a contract when he is of unsound
mind; and
iii. A person who is usually of unsound mind, but occasionally of
sound mind, may make a contract when he is of sound mind.
As would be obvious from the above, a common thread is found to run
between Section 12 of the Contract Act and Section 59 of the Indian
Succession Act. Since the propounder of a Will as per Section 59 of the
Indian Succession Act is required to prove that the testator at the time of
making of the Will was of sound mind, the burden of proof would be on
the propounder.
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17. Examined in the light of these tests, I find that the appellants /
plaintiffs have completely failed to establish the genuineness of the Will.
The following facts and circumstances support this conclusion of mine.
17.1. It is not in dispute that the plaintiffs are the brother's sons of
Varadappa Asari, husband of Karuppayammal. The entire case of the
plaintiffs rests on Ex.A4 Will dated 29.09.1995. Though the Will,
according to the plaintiffs, attested by two witnesses, none of them was
examined on the side of the plaintiffs. The scribe alone was examined as
P.W.2. There is nothing on record to show that he had attested the Will.
Therefore, the evidence of P.W.2 will not help the case of the plaintiffs
with regard to proof of Will. Section 68 of the Indian Evidence Act,
1872, provides for the mode and manner in which execution of the Will
is to be proved. Proof of attestation of the Will is a mandatory
requirement. A Will ordinarily must be proved keeping in view the
provisions of Section 63 of the Succession Act, 1925, and Section 68 of
the Indian Evidence Act, 1872. Hence, the requirements contemplated
under Section 63(c) of the Indian Succession Act and Section 68 of the
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Indian Evidence Act was not satisfied by the plaintiffs to prove the
genuineness of the Will. Though it was stated by the plaintiffs that the
attesting witnesses were threatened by the defendants, the same is also
not established. There is nothing on record to show that any step was
taken to compel the appearance of attesting witness. There must be some
evidence brought on record that the witnesses were threatened by the
defendants. Further, Ex.A4 Will is dated 29.09.1995 and the testator
Karuppayammal died on 30.09.1995. While so, the plaintiffs failed to
establish that she was in sound state of mind at the time of execution of
the Will. The earlier litigations, the manner in which the alleged
signature of the testator subscribed in the Will, was extensively
discussed by the first appellate court for disbelieving the Will.
17.2. Though it is contended on the side of the appellants /
plaintiffs that the first appellate court was not justified in upholding the
Wills Ex.B3, Ex.B4 and Ex.B5 in the absence of original Wills, it is for
the plaintiffs to prove their case independently and cannot rely on the
weakness in the defence case to win. The plaintiffs must present their
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own evidence to establish the facts and support their claim. The failure
to meet this burden of proof can result in their case being dismissed,
regardless of the strength of the defence. Furthermore, the plaintiffs
failed to establish that they have right over the suit property as legal heirs
of Karuppayammal in view of Section 15 of the Hindu Succession Act.
No perversity or infirmity is found in the findings of the first appellate
court. Therefore, all the substantial questions of law raised in the Second
Appeal are answered against the appellants/plaintiffs.
18. For the foregoing reasons, I have no hesitation in upholding the
findings recorded by the first appellate court. Accordingly, this Second
Appeal is dismissed. The judgment and decree dated 26.11.2019 passed
in A.S. No.63 of 2019, on the file of the Principal District Court,
Namakkal, is upheld. No costs. Consequently connected Civil
Miscellaneous Petition is closed.
21.11.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
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bga
To
1. The Principal District Judge, Namakkal.
2. The Principal Subordinate Judge, Namakkal.
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J
bga
Pre delivery Judgment in
S.A.No.592 of 2020 and
21.11.2025
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