Madras High Court
P.Eswari vs Nallappa Gounder (Died) on 6 October, 2025
A.S.NO.343 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 01 / 07 /2025
JUDGMENT PRONOUNCED ON : 06 / 10 / 2025
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
APPEAL SUIT NO.343 OF 2018
P.Eswari ... Appellant/
Plaintiff
Vs.
1. Nallappa Gounder (Died)
2. N.Thulasimani (Died)
3. T.Pushpa
4. V.Indhumathy ... Respondents /
defendants
Note : Respondent No.1 passed away
during the pendency of the Original
Suit and at that time his legal
representatives were already on record
as plaintiff and second defendant.
During the pendency of this Appeal
Suit, Respondent No.2 passed away.
Respondents 3 and 4 were brought on
records as legal representatives of the
deceased -Respondent No. 2 vide Order
of this Court dated October 25, 2021,
made in C.M.P. No.12854 of 2021 in
A.S.No.343 of 2018.
Page No.1 of 30
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PRAYER: First Appeal filed under Section 96 read with Order XLI Rule
1 of the Code of Civil Procedure, 1908 praying to set aside the Judgment
and Decree dated February 09, 2018 passed in O.S.No.53 of 2016 by the
learned II Additional District and Sessions Court, Erode.
For Appellant : Mr.Arun Prasath
for Mr.M.Guruprasad
For Respondents : Passed away
Nos.1 and 2
For Respondents : Mr.N.Manokaran
Nos.3 and 4
JUDGMENT
Feeling aggrieved by the Judgment and Decree dated February 09,
2018 passed in O.S.No.53 of 2016 by the 'II Additional District and
Sessions Court, Erode' ['Trial Court' for brevity], the plaintiff therein has
filed this Appeal Suit under Section 96 read with Order XLI Rule 1 of 'the
Code of Civil Procedure, 1908' ['CPC' for short].
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
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PLAINTIFF'S CASE
3. The plaintiff is the daughter of first defendant and late
Thirumayammal. The second defendant is son of first defendant and also
brother of plaintiff. The Suit Item No.1 was purchased by first defendant
and Thirumayammal using joint family income in the name of
Thirumayammal under registered Sale Deed dated March 04, 1970. Later,
out of the rental income from Suit Item No.1, Thirumayammal purchased
Suit Item No.2 in her name vide Sale Deed dated July 03, 1991.
3.1. The plaintiff and defendants constitute a Hindu undivided joint
family and are in joint possession and enjoyment of the Suit Properties
without effecting any partition. Thirumayammal passed away intestate on
June 18, 2008, leaving behind plaintiff and defendants as her legal heirs,
who are entitled to a 1/3 share each in the Suit Properties. Despite various
demands made for amicable partition by the plaintiff, the defendants
refused. The plaintiff made a final demand for partition on March 20,
2016, but the defendants proclaimed that they would not allot any share to
the plaintiff and intended to encumber the Suit Properties. The plaintiff is
residing in a small portion of Suit Item No.1 along with her family.
Therefore, the plaintiff filed the present Suit for partition, separate
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possession, and permanent injunction restraining the defendants from
encumbering and alienating the Suit Properties.
DEFENDANTS’ CASE
4. The defendants filed separate written statements, the sum and
substance of which are as follows:
4.1. The Suit Properties are the absolute properties of late
Thirumayammal, purchased from her separate funds and not from joint
family income. Suit Item No.1 was purchased by Thirumayammal under a
registered Sale Deed dated March 4, 1970. Suit Item No.2 was purchased
by Thirumayammal from her own funds, including rental income from Suit
Item No.1 under registered Sale Deed dated July 3, 1991. There was no
contribution from first defendant in the purchase of Suit Item Nos.1 and 2,
and he had no right, title, or possession over the same.
4.2. Thirumayammal on November 8, 1984 executed a registered Will
bequeathing the entire Suit Item No.1 absolutely in favour of second
defendant.
4.3. Thereafter, Thirumayammal executed another registered Will
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dated May 20, 2008, revoking her earlier Will and bequeathing Suit Item
No.1 in favour of the second defendant, with a limited right to the plaintiff
to reside in a small house on the eastern of Suit Item No.1 during the
plaintiff’s life time without any power of alienation.
4.4. Thereafter, Thirumayammal passed away on June 18, 2008.
Upon her demise, the Will dated May 20, 2008 came into effect and the
second defendant became entitled to Suit Item No.1 with the plaintiff
having life estate over a small house therein.
4.5. The plaintiff is not a joint family member along with defendants
as alleged. There was no joint family property and there was no joint
family income / funds. Hence, the plaintiff is not entitled to 1/3rd share in
Suit Item No.1 as claimed by her. Stating so, the defendants prayed for
dismissal of the Suit.
TRIAL COURT
5. Based on the above pleadings, the Trial Court framed the
following issues on July 02, 2016:-
1. Is it true that the suit properties are to be
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subjected to partition as claimed?
2. Is the plaintiff entitled to the relief of partition
of the suit properties? If so to what share?
3. Is the Will of Thirumayee ammal dated May 20,
2008, valid, genuine and binding upon the
plaintiff?
4. To what other reliefs, the parties are entitled
to?"
6. At trial, on the side of the plaintiff, the plaintiff was examined as
P.W.1 and one Mr. Thangavel was examined as P.W.2 and Ex-A.1 to Ex-
A.4 were marked. On the side of the defendants, the 2nd defendant was
examined as D.W.1 and Ex-B.1 to Ex-B.4 were marked. Further, one
Mohan was examined as D.W.2 and one Sumathi was D.W.3; they were
the attesting witness and scribe respectively to the Will dated May 20,
2008.
7. Pending the Original Suit, the first defendant passed away
intestate. His legal representatives were already on record, namely the
plaintiff and the second defendant.
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8. After full-fledged trial, the Trial Court held that Ex-B.4 - Will
dated May 20, 2008 is genuine, valid and binding on the plaintiff and
accordingly, dismissed the Suit qua Suit Item No.1. Further held that Suit
Item No.2 alone is available for partition. Accordingly, the Trial Court
concluded that the plaintiff was entitled to ½ share in Suit Item No.2 and
passed a Preliminary Decree to that effect.
FIRST APPEAL
9. Feeling aggrieved, the plaintiff has preferred this Appeal Suit
under Section 96 read with Order XLI Rule 1 of the CPC.
10. During the pendency of this Appeal Suit, the second defendant
(Respondent in the Appeal Suit) passed away and hence, his legal
representatives, namely wife – Pushpa and daughter – Indhumathi were
brought on record vide Order of this Court dated October 25, 2021 made
in Civil Miscellaneous Petition No.12854 of 2021 in the main Appeal Suit.
ARGUMENTS:
11. The arguments of Mr.Arun Prasath for Mr.M.Guruprasad,
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learned Counsel for the appellant / plaintiff can be summarised as
follows:
11.1. Ex-B.4 is the certified registration copy of the Will dated May
20, 2008. The original of Ex-B.4 - Will has not been produced. There is no
foundational pleadings about the original of Ex-B.4. Without foundational
pleadings, secondary evidence is not admissible, in other words, certified
copy / registration copy of the Will is not admissible.
11.2. D.W.2, who is said to be one of the attestor of Ex-B.4 – Will was
not aware of its contents. Hence, the other attesting witness of Ex-B.4 –
Will ought to have been examined, but the defendants’ side failed to do so.
Since other witness was not examined, Ex-B.4 is not proved as per Section
63 of the Indian Succession Act, 1925 read with Section 68 of the Indian
Evidence Act, 1872.
11.3. The Trial Court permitted the defendants’ side to cross-examine
their own witness namely D.W.2 when the conditions stipulated under
Section 154 of Indian Evidence Act, 1872 are not satisfied. The Trial
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Court erred in doing so.
11.4. The Trial Court’s finding that the Suit Properties are
absolute/separate properties of Thirumayee Ammal is incorrect.
11.5. In support of his contentions, he relied on the Judgment of
Hon'ble Supreme Court in Janki Narayan Bhoir -vs- Narayan Namdeo
Kadam, reported in (2003) 2 SCC 91.
11.6. The Judgment and Decree of the Trial Court is erroneous and
deserves to be interfered with. Accordingly, he would pray to set aside the
Judgment and Decree of the Trial Court.
12. On the other hand, Mr.N.Manokaran, learned Counsel for the
respondents 3 and 4 would invite the attention of this Court to the
evidence. of P.W.1 and argue that the plaintiff is well aware of the
execution of Ex-B.4 – Will dated May 20, 2008 by Thirumayammal at the
time of Thirumayammal’s demise itself.
12.1. He would further argue that Thirumayammal had executed Ex-
B.3 – Will dated November 8, 1984 bequeathing the entire Suit Item No.1
in favour of second defendant absolutely. The subsequent Will (Ex-B.4)
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was executed bequeathing Suit Item No.1 in favour of second defendant
with life interest over a small house on the eastern portion thereof to the
plaintiff. She consciously omitted Suit Item No.2 from her Will. Hence,
Ex-B.4 – Will is natural and there are no suspicious circumstances
surrounding it.
12.2. He would further argue that Ex-B.4 is a registered Will and
hence only a formal proof is required. One of the attesting witness, namely
Mohan, examined as D.W.2, is a close relative of the testatrix. He is the
nephew of the testatrix. His chief evidence clearly proves the execution of
Ex-B.4 – Will.
12.3. He would further argue that D.W.2 was later won over by the
plaintiff and consequently, D.W.2 refused to appear for cross-examination.
Subsequently, through coercive action by the Court, he was arrested and
produced before Court for cross-examination. Since he resiled from his
earlier statements, he was cross-examined by the defendants’ side after
obtaining necessary permission from the Court.
12.4. He would further argue that, in addition to D.W. 2, the scribe of
Ex-B.4 – Will was also examined. Her evidence is also clear and
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trustworthy and there is no reason to reject the same.
12.5. Before commencement of trial, on June 15, 2017, the plaintiff
gave notice to the defendants calling upon them to produce the original
Will. On June 30, 2017, the defendants filed a memo stating that the
original Will is with the plaintiff. The said memo has been recorded by the
Trial Court. The plaintiff did not deny or give any reply to the said memo.
The second defendant in his chief examination, has clearly stated that the
custody of the original of Ex-B.4 - Will is with the plaintiff. The Trial
Court rightly dismissed the Suit qua Suit Item No.1 by holding that Ex-
B.4 – Will is true, valid and binding on the plaintiff. There is no need to
interfere with the Judgment and Decree of the Trial Court. Accordingly, he
would pray to dismiss the Appeal Suit and confirm the Judgment and
Decree of the Trial Court.
12.6. He would rely on the following decisions in support of his
contentions:
(i) Judgment of Hon'ble Supreme Court in Pentakota
Sathyanarayana -vs- Pentakota Seetharathnam, reported in
(2005) 8 SCC 67;
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(ii) Judgment of Hon'ble Supreme Court in Sridevi -vs- Jayaraja
Shetty, reported in (2005) 2 SCC 784;
(iii) Judgment of this Court (Division Bench) in Janaki Devi -vs-
Vasanthi, reported in 2005 (1) CTC 11;
(iv) Judgment of this Court (Division Bench) in Dr.Shantha -vs-
Sharada, reported in 2003 (4) CTC 470.
DISCUSSION:
13. Heard on either side. Perused the evidence available on record.
The following points arise for consideration in this Appeal Suit:
(i) Whether the Suit Properties are joint family properties as contended
by the plaintiff or self-acquired properties of the mother -
Thirumayammal ?
(ii) Whether Ex-B.4 – Will dated May 20, 2008 is true, genuine and
valid ?
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Point No.(i)
14. Ex-A.1 = Ex-B.1 - registered Sale Deed dated March 04, 1970
qua Suit Item No.1 and Ex-A.2 = Ex-B.2 - registered Sale Deed dated July
03, 1991 qua Suit Item No.2 stands in the name of Thirumayammal . No
dispute with the above facts. It is the case of the plaintiff that there existed
a joint family consisting of the first defendant, Thirumayammal, second
defendant and the plaintiff at the time of Ex-B.1, and Suit Item No.1 was
purchased using the joint family funds, jointly by Thirumayammal and
first defendant, in the name of Thirumayammal. Further, out of the rental
income from Suit Item No.1, Suit Item No.2 was purchased by
Thirumayammal and hence, it is also a joint family property. That being
the case of the plaintiff, the defendants’ case is that Suit Properties are
self-acquired / absolute properties of Thirumayammal and there existed no
joint family income, funds or properties as contended by the plaintiff.
15. The plaintiff who pleads that Suit Item No.1 was purchased out
of joint family income bears the burden to prove the existence of joint
family properties and surplus income therefrom and / or joint family
income and surplus thereof, before Ex-B.1. Other than the pleadings, there
is nothing available on record to show such existence before Ex-B.1.
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Further, at the time of Ex-B.1 i.e., in 1970, as per the plaint cause title and
the evidence of P.W.1 / plaintiff, the plaintiff was below 10 years and the
second defendant was about 6 years old. It is improbable that they
contributed to the joint family income in any manner at such tender ages.
When there is no proof that Suit Item No.1 is a joint family property, Suit
Item No.2 which even as per the plaintiff was purchased out of the rental
income from Suit Item No.1, cannot be said to be a joint family property.
16. Further case of the plaintiff is that Suit Properties was jointly
purchased by Thirumayammal and first defendant, in the name of
Thirumayammal. The first defendant in his written statement has clearly
pleaded that the Suit Properties do not belong to him in any manner. The
plaintiff in her evidence has stated she and her father had no animosity
against each other, and hence, there is no reason for first defendant to file
written statement against the interest of the plaintiff contrary to truth.
Moreover, there is no pleadings or evidence available on record to show
that first defendant had substantial income from any source to purchase
properties. Nothing could be found from a perusal of Ex-B.1 and Ex-B.2
to show that first defendant was involved in the purchase of Suit
Properties in any manner. As a matter of fact, he has not even a witness to
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Ex-B.1 and Ex-B.2. P.W.1 in her evidence has clearly deposed that her
father had no property inherited from his father side (vd; jfg;gdhUf;F
gpJuhh;$pj brhj;Jf;fs; vJt[k; ,y;iy vd;why; rhpjhd;); and that it is a
well-known fact in her village that her mother is a smart and able person
who was running a milk vending business with 12 buffaloes. From the
above it is clear that Thirumayammal had her own income and in view of
the aforesaid admissions made by first defendant and the plaintiff, it can
only be concluded that Thirumayammal purchased Suit Item No.1 out of
her own income.
17. For argument sake, even while assuming Suit Properties were
purchased by first defendant in the name of Thirumayammal, it can only
be presumed to be for the benefit of Thirumayammal and not first
defendant, as the first defendant has not taken such a stand; the first
defendant on the other hand, has categorically pleaded that he has no title
or right over the Suit Properties. When the first defendant has not taken a
stand that the Suit Properties were purchased by him out of his own
exertions for his benefit, but in the name of Thirumayammal, the plaintiff
is precluded from taking such a stand [See Judgment of Hon'ble Supreme
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Court in Gangamma -vs- Nagarathinamma, reported in (2009) 15 SCC
756 and the Judgment of this Court (Division Bench) in Parvathi Ammal
-vs- Solai Ammal, reported in 1997-2-LW-908]. Hence, such an
assumption would also fail. Therefore, the contention of the plaintiff that
Suit Item No.1 was jointly purchased by Thirumayammal and first
defendant, in the name of Thirumayammal, has no legs to stand.
18. Thus, neither is there any evidence available on record to show
that Suit Properties are joint family properties nor is there any to show that
the Suit Properties were purchased jointly by first defendant and
Thirumayammal or by first defendant in the name of Thirumayammal for
his own benefit. Hence, this Court is of the view that the Suit Properties
are self-acquired and absolute properties of Thirumayammal. Point No.(i)
is answered accordingly in favour of defendants and against the
plaintiff.
Point No.(ii)
19. As held above, the Suit Properties are absolute properties of
Thirumayammal vide Ex-B.1 and Ex-B.2 – Sale Deeds. Hence,
Thirumayammal had testamentary capacity to execute Will in respect of
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the same. The first defendant in his written statement pleaded that
Thirumayammal passed away leaving behind a Will executed while in a
sound and disposing state of mind out of her free will bequeathing Suit
Item No.1 in favour of the second defendant absolutely with life interest in
respect of a small house therein in favour of plaintiff without any power
of alienation. The second defendant in his written statement as well has
made similar pleadings. In addition, he has extracted the operative
portions of the aforesaid Will dated May 20, 2008 and annexed a certified
registration copy (scanned) of it along with written statement (later
marked as Ex-B.4), besides pleading about the earlier registered Will dated
November 8, 1984. Upon the demise of Thirumayammal, the Will dated
May 20, 2008, the plaintiff is residing in the small house on the eastern
side of Suit Item No.1. The above are the categorical pleadings made on
the defendants’ side.
20. To be noted, the plaintiff did not file any rejoinder or reply to
the written statements filed by the defendants, which is nonetheless not
mandatory. Based on the pleadings, issues were framed on July 02, 2016
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and one among them, the third issue, was “Is the Will of Thirumayee
ammal dated May 20, 2008, valid, genuine and binding upon the
plaintiff ”. On June 15, 2017, when the case was posted for trial, the
plaintiff’s side issued a memo of notice calling upon the defendants to
produce the original of Ex-B.4 - Will dated May 20, 2008. The defendants’
side filed reply a memo stating that the same is under the custody of the
plaintiff. The plaintiff did not submit any reply denying or controverting
the averments made in the reply memo.
21. Further, from the evidence of P.W.1 / plaintiff, it could be clearly
understood that she had the knowledge of Ex-B.4 – Will at the time of her
mother’s demise. P.W.1 has deposed that immediately after the demise of
her mother, she sought for her proportionate share in the rental income
from Suit Item No.1 which the second defendant refused citing that Suit
Item No.1 has been bequeathed to him under Ex-B.4 – Will. Further, from
a bare reading of Ex-B.4 – Will, it is discernible that Thirumayammal and
the plaintiff, both are residing in the Suit Item No.1 at the time of
execution of Ex-B.4 – Will, which increases the likelihood of the plaintiff
being aware of the execution of Ex-B.4 - Will.
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22. Though the defendants in their written statement omitted to
plead that the original of Ex-B.4 – Will is under the custody of the
plaintiff, they have stated so in the reply memo before the commencement
of trial. Further, the registration copy (scanned) of the Will dated May 20,
2008 (Ex-B.4) was marked in open Court in the presence of the plaintiff’s
side Counsel by the second defendant, without any objection from the
plaintiff’s side. Further, D.W.1 / second defendant has deposed in his chief
examination that the original of Ex-B.4 lies with the plaintiff. Further, as
mentioned above, the plaintiff and the testatrix were residing in the Suit
Item No.1 at the time of execution of Ex-B.4 and this, coupled with the
fact that the plaintiff was given life interest, increases the probability of
the original of Ex-B.4 being under the custody of the plaintiff. From the
above, especially the fact that the plaintiff did not deny or controvert or
reply to the averments made in the reply memo, it appears that the custody
of the original of Ex-B.4 – Will is with the plaintiff. As per Section 65 (a)
of the Indian Evidence Act, 1872, when the original of a document appears
to be in the possession of the person against whom it is sought to be
proved, then secondary evidence is admissible. Hence, the secondary
evidence viz., Ex-B.4 –registration copy (scanned) of the Will dated May
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20, 2008 is admissible in evidence.
23. Coming to the proof of Ex-B.4 – Will, it has to be noted that the
plaintiff did not specifically deny the testamentary capacity and execution
of Ex-B.4 – Will in a sound state of mind. P.W.1 in her evidence has
deposed that she is contesting the Will only on an assumption that it is not
genuine. Relevant extract is hereunder:
“vdf;Fk;. vd; mg;ghtpw;Fk; tpnuhjk; vJt[k;
,y;iy/ ,e;j tHf;fpy; vd; jfg;gdhh; vd;d
vjph;thjk; bra;jpUf;fpwhh; vd;gij bjhpe;J
bfhs;stpy;iy/ 2k; gpujpthjpahd vd; jk;gp vd;d
vjph;thjk; bra;jpUf;fpwhh; vd;W vd; tHf;FiuQh;
brhy;ypjb; jhpe;J bfhz;nld;/ 2k; gpujpthjpapd;
vjph;ciuf;F ehd; gjpy; ciu vJt[k; jhf;fy;
bra;atpy;iy/ vd; mk;kh capy; vGjp
itj;jpUf;fpwhuh vd;W ehd; tprhhpf;ftpy;iy/ vd;
mk;khtpd; capy; gjpt[ bra;ag;gl;Ls;sJ vd;W
brhd;dhy; vdf;F bjhpahJ/ vd; mk;khtpd;
capiy ehd; ghh;f;ftpy;iy/ vd; kfd; tsh;e;J
tpl;lhd;/ vd; kfida[k; capiy gw;wp tprhhpf;f
brhy;ytpy;iy/ capy; bgha;ahdJ vd;W
mDkhdj;jpy; brhy;Yfpnwd; vd;why; rhpjhd;/ vd;
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mk;kh vGjp itj;jjhf 2k; gpujpthjp brhy;Yk;
capy; jhth 1k; mapl;lk; brhj;jhd tPl;oy;
bjd;g[wj;jpy; fpHnfhl;oy; ,Uf;Fk; gFjpapy; ehd;
vd; Ma[s; fhyk; tiu FoapUe;J bfhs;s
ntz;Lk; vd;Wk;. vdf;F gpd;dpl;L mij vd;
jk;gp mile;J bfhs;s ntz;Lk; vd;Wk; vd;
mk;kh capy; vGjp itj;Js;shh; vd;W brhd;dhy;
mijg;gw;wp vdf;F bjhpahJ/”
24. Now this Court shall look into some relevant facts. Ex-B.3 –
registered Will dated November 8, 1984, the earlier Will of
Thirumayammal whereby she bequeathed Suit Item No.1 absolutely in
favour of second defendant without any life interest for the plaintiff,
contains a recital that the testatrix had conducted the marriage of her
daughter with all the Seer. Thus, it can be understood that the plaintiff was
married before Ex-B.3. To be noted, the plaintiff did not categorically
deny Ex-B.3 anywhere. In her evidence, P.W.1 had deposed that in her
marriage, she had a son and a daughter, that her husband had no property
and that he entered into a relationship outside of marriage. It was in this
scenario, Thirumayammal executed Ex-B.4 – Will dated May 20, 2008
revoking Ex-B.3 and bequeathing Suit Item No.1 in favour of second
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defendant subject to the life interest of the plaintiff in respect of the small
house on the eastern side thereof. Suit Item No.1 is a plot measuring 3080
sq. ft. containing two houses (one on the eastern side and one on the
western side) and a weaving shed, while Suit Item No.2 is a vacant house
site measuring 1068 sq. ft.
25. The intention of the testatrix could be gathered from the above
facts. When her daughter was happily married and quite settled, she
bequeathed the entire Suit Item No.1 absolutely in favour of second
defendant leaving no life interest for the plaintiff. Due to the subsequent
developments in the marital life of the plaintiff, as the plaintiff’s husband
who had no property entered into a relationship outside of marriage and
the plaintiff had two children to take care of, the testatrix revoked her
earlier Will (Ex-B.3) and bequeathed Suit Item No.1 in favour of second
defendant giving life interest over a house therein in favour of plaintiff
through Ex-B.4 – Will dated May 20, 2008. Qua Suit Item No.2, she did
not execute any Will at any point of time. Thus, the testamentary
disposition is very natural and the intention of the testatrix is clear; she
wanted to ensure the basic need of shelter to her daughter, the plaintiff,
who is not in a happy marriage. In these circumstances, as the
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testamentary capacity of the testatrix and execution of Ex-B.4 – Will in a
sound state of mind are not denied and as testamentary disposition is
natural and the intention of the testatrix is clear, this Court is of the view
that Ex-B.4 requires only a formal proof.
26. The defendants’ side examined D.W.2, one of the attestor of Ex-
B.4 and D.W.3, Ex-B.4’s scribe. D.W.2 and another witness to Ex-B.4 –
Will namely Raja are none other than the nephews (testatrix’s brother’s
sons) of the testatrix - Thirumayammal. D.W.2, on September 22, 2017,
had filed his chief affidavit and his chief examination was also recorded
on the same day. At that time, he identified the photo in Ex-B.4 and the
signatures found in each and every page thereof as that of
Thirumayammal. He also identified his signature as well as the signature
of the other attesting witness. Further, at the time of registration as well,
he along with the said other attesting witness, signed as identifying
witnesses at the Sub-Registrar Office. To be noted, Ex-B.4 is a clear
scanned copy in which all the signatures and pictures are clear and
identifiable. At the request of the plaintiff’s side, the case was adjourned
for cross-examination of D.W.2. Thereafter, D.W.2 did not appear before
Court and hence, he had to be produced for cross-examination through
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A.S.NO.343 of 2018
coercive action by Court by issuance of arrest warrant on January 4, 2018.
On January 4, 2018, the plaintiff’s side cross-examined him. Slightly
contradictory to his earlier evidence, he deposed to the effect that he was
not aware of the contents of the Will; in his earlier evidence he had
deposed to the effect that he was aware of the contents of Ex-B.4 – Will.
However, in his cross-examination, he admitted his signature and
identified the signature of Thirumayammal. He also admitted that he
signed as witness in Ex-B.4 - Will and as an identifying witness before the
Sub-Registrar Office. D.W.2 being closely related to the testatrix and thus
to both the plaintiff and the defendants, it is possible that he later choose
to stay from the Court proceedings to maintain a cordial relationship with
both the sides and tried to maintain a cordial stand at the time of his cross-
examination. Still, his evidence is sufficient to prove the execution of Ex-
B.4 – Will as per Section 63 (c) of the Indian Succession Act, 1925 read
with Section 68 of the Indian Evidence Act, 1872. The learned Counsel for
the appellant / plaintiff would contend that the Trial Court erred in
permitting the defendants to cross-examine their own witness namely
D.W.2 when the conditions stipulated Section 154 of the Indian Evidence
Act, 1872 are not satisfied. As stated supra, as D.W.2 resiled from few of
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A.S.NO.343 of 2018
his earlier deposition qua his knowledge about the contents of Ex-B.4 –
Will, the defendants’ side cross-examined their D.W.2. Section 154 of
Indian Evidence Act, 1872 reads thus:
“Section 154. Question by party to his own witness :
(1) The Court may, in its discretion, permit the
person who calls a witness to put any questions to
him which might be put in cross-examination by the
adverse party.
(2) Nothing in this section shall disentitle the
person so permitted under sub-section (1), to rely on
any part of the evidence of such witness.”
26.1. From the above extract, it is clear that it is the discretion of the
Court to permit a person to cross-examine their own witness. The Trial
Court has exercised its discretion and this Court finds no reason as to why
the Trial Court ought not to have done so. Hence, there is nothing wrong
with the same.
27. D.W.3 – Scribe, though she is not an attesting witness, has
clearly deposed about the execution and attestation of Ex-B.4 – Will. The
evidence of D.W.2 and D.W.3 clearly proves the execution of Ex-B.4 –
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A.S.NO.343 of 2018
Will. Their evidence are trustworthy and no reason to reject the same.
Further, the testatrix is a signatory and she has signed not just in Ex-B.4 –
Will, but in the earlier Will (Ex-B.3) as well. There appears to be no
significant difference between her signature in Ex-B.3 and in Ex-B.4.
Further, there appears to be no suspicious circumstances surrounding Ex-
B.4 – Will. From the oral evidence of P.W.1, D.W.1, D.W.2 and D.W.3, it
could be gathered that Ex-B.4 – Will was executed by Thirumayammal
voluntarily in a fit state of mind. Hence, this Court is of the view that Ex-
B.4 – Will has been proved as per Section 63 (c) of Indian Succession Act,
1925 read with Section 68 of the Indian Evidence Act, 1872. Ex-B.4 –
Will is true, genuine, valid and binding on the plaintiff. Point No.(ii) is
answered accordingly in favour of defendants and against the
plaintiffs.
28. No quarrel with the case laws relied on either side. This Court
has considered the principles advanced therein. As they are general
principles, there was no need for this Court to discuss them elaborately.
29. In view of the above findings, the plaintiff is not entitled to seek
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A.S.NO.343 of 2018
partition in Suit Item No.1. However, as there is no testament in respect of
Suit Item No.2, upon the demise of Thirumayammal, it shall devolve upon
the plaintiff and first and second defendants as per Section 15 of the
Hindu Succession Act, 1956. Even the defendants have not disputed that
the plaintiff is entitled to share in Suit Item No.2. As first defendant passed
away pending Suit, his 1/3 share in Suit Item No.2 would devolve upon
the plaintiff and the second defendant as per Section 8 of the Hindu
Succession Act, 1956. Thus, the plaintiff and the second defendant would
each be entitled to equal share in Suit Item No.2. The Trial Court rightly
dismissed the Suit qua Suit Item No.1 and decreed the Suit qua Suit Item
No.2. This Court finds no reason to interfere with the Judgment and
Decree of the Trial Court. Hence, the Appeal Suit must fail as devoid of
merits.
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CONCLUSION:
30. Resultantly, the Appeal Suit stands dismissed. The Judgment
and Decree of the Trial Court is hereby confirmed. Keeping in mind the
facts and circumstances of the case, there shall be no order as to costs in
this Appeal Suit.
06.10.2025
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation : Yes / No
jai / TK / pam
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A.S.NO.343 of 2018
To
The II Additional District and Sessions Court,
Erode.
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A.S.NO.343 of 2018
R. SAKTHIVEL, J.
jai / TK / pam
PRE-DELIVERY JUDGMENT MADE IN
APPEAL SUIT NO.343 of 2018
06.10.2025
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