Madras High Court
Valli Ammal vs Palani on 12 September, 2025
S.A.No.33 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 16.07.2025
Pronounced on 12.09.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.No.33 of 2019
Valli Ammal ...Appellant
Vs.
1. Palani
2. Chinnaponnu ...Respondents
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 22.08.2017 passed in A.S. No.47 of 2013, on
the file of the Subordinate Judge, Kancheepuram, confirming the
Judgment and decree dated 16.07.2013 passed in O.S.No.14 of 2009, on
the file of the Additional District Munsif, Kancheepuram.
For Appellant : Mr. M.S. Subramanian
For Respondents : Ms. A. Saranya
Page 1 of 22
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S.A.No.33 of 2019
JUDGMENT
In this Second Appeal, challenge is made to the decree and
judgment dated 22.08.2017 passed in A.S. No.47 of 2013, on the file of
the Subordinate Judge, Kancheepuram, confirming the Judgment and
decree dated 16.07.2013 passed in O.S.No.14 of 2009, on the file of the
Additional District Munsif, Kancheepuram.
2. For the sake of convenience the parties are referred to as per
their ranking in the trial court.
3. The plaintiff in O.S. No.14/09 filed the above suit for
declaration of title and for delivery of possession. According to the
plaintiff, she is the daughter of one Murugesa Naicker of Sirunaiperugal
village, Kancheepuram Taluk. The 1st defendant is her brother. The
plaintiff has got two other sister by name Santhi and Banuammal. The
wet lands measuring an extent of 0.43 acres out of 0.83 acres in survey
No.112/6 in Sirunaiperugal village, is the suit property. Originally the
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suit property belonged to plaintiff's father Murugesa Naicker. The
plaintiff submits that while her father was in sound and disposing state of
mind executed a registered Will dated 16.09.1991 bequeathing the suit
schedule properties in her favour. On the same day, he executed another
Will in favour of his another daughter Banu Ammal in respect of the
remaining 40 cents of land in survey number 112/06. The plaintiff's
father died on 13.11.1991 and the Will came into force. As per the terms
of the Will, the plaintiff has become the owner of the suit property and
she is in possession and enjoyment of the same as absolute owner. The
plaintiff submits that the 1st defendant has taken a hostile attitude against
her and with an ulterior motive to grab the suit property, fabricated a
settlement deed in favour his wife Chinnaponnu, who is the 2nd defendant
in the above suit. The above settlement deed is not valid and binding on
the plaintiff. While so, in June 2008, the defendants trespassed into the
suit property. Hence, the plaintiff was constrained to file the above suit
for declaration of title and delivery of possession.
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4. The 1st defendant resisted the claim of the plaintiff stating that
the wet land comprised in survey number 112/06 to an extent of 83 cents
is the ancestral property of his grandfather Narasimha Naicker. After his
demise, the 1st defendant's father Murugesa Naicker was in possession
and enjoyment of the same till his death. The 1st defendant further
submits that while his father Murugesa Naicker was not in sound and
disposing state of mind, the plaintiff and her sister Banu Ammal
fraudulently obtained the Will and got the same registered. Subsequently
the same was cancelled by the father by executing another Will dated
09.11.1991. The said Will was not registered since his father was not in a
position to come to the Registrar Office. He would further submit that
the plaintiff's mother was also one of the attestors to the Will dated
09.11.1991. The 1st defendant alone was in possession and enjoyment of
the suit property from 13.11.1991 till 28.07.2003 and thereafter, he
executed a settlement deed in favour of his wife, the 2nd defendant in
respect of the suit property and other items of land. The 2nd defendant in
pursuant to the settlement deed is in possession and enjoyment of the
property and the revenue records stands in the name of the 2nd defendant.
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The defendants have perfected title by prescription and also by adverse
possession to the suit property. The plaintiff was never in possession and
enjoyment of the suit property in pursuant to the alleged Will which was
not acted upon. The suit is barred by limitation and at no point of time
the defendants trespassed into the suit property as alleged in the plaint.
Hence prayed for dismissal of the suit.
5. The trial court, based on materials on record dismissed the suit.
Aggrieved by this, the plaintiff preferred the appeal in A.S. No.47/2013
on the file of the Subordinate Court, Kancheepuram. The first appellate
court dismissed the appeal by confirming the decree and judgment of the
trial court. Challenging the same, the present second appeal is filed by
the plaintiff.
6. The second appeal has been admitted on the following
substantial questions of law.
“1.Whether the Trial Court having held that the
defendant has not dispelled the suspicious circumstances
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and disbelieved the Will dated 09.11.1991 in favour of the
Defendant, Was the Lower Appellate Court right in
proceeding to hold that under the Will dated 09.11.1991, the
Defendant was got title without considering the entire
evidence regarding the due Execution and Attestation of the
Same?
2.Whether the Judgment of both the Courts are
vitiated by wrongly placing the burden on the plaintiff
regarding the possession of the suit property when
admittedly the Defendant is the brother of the plaintiff?
3.Whether the Courts below have gone wrong in
finding possession to be adverse against the Plaintiff, When
plaintiff's title is established?”
7. The learned counsel appearing for the appellant submits that the
father of the plaintiff Murugesa Naicker was bed ridden for about 9 days
prior to his death on 13.11.1991. The plaintiff's mother who had attested
the Will, though alive, was not examined. Further the Will in favour of
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the plaintiff is a registered document and the Will dated 09.11.1991 relied
upon by the defendants is an unregistered document. Moreover, the
attestor of the Will is a purchaser of the property from the defendant who
was examined as D.W.2 and therefore his evidence cannot be relied upon.
However, the courts below failed to consider the categorical admission
made by the 1st defendant that his father Murugesa Naicker was bed
ridden prior to his death on 13.11.1991 and the courts below grossly
erred in placing the burden on the plaintiff regarding possession. Further
the courts below erroneously observed that the Will dated 09.11.1991 in
favour of the 1st defendant is genuine by stating that the Will dated
09.11.1991 was mentioned in the settlement deed dated 28.07.2003.
Further the courts below erroneously held that the possession is with the
defendants and the plaintiff failed to prove her possession in the suit
property. The first appellate court failed to take note of the fact that the
defendants have not dispelled the suspicious circumstances surrounding
the Will dated 09.11.1991 executed in favour of the 1st defendant. It is
further submitted that the courts below wrongly placed the burden on the
plaintiff regarding the possession of the suit property when admittedly
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the 1st defendant is the brother of the plaintiff. Particularly when the
plaintiff's title is established, the courts below erred in rendering a
finding that possession is against the plaintiff. The learned counsel
further submits that the possession of property by a co-sharer is deemed
to be possession on behalf of the other co-sharer unless there is a clear
ouster by denying title of the other co-sharer. Therefore, for ascertaining
whether the plea of adverse possession was raised, the courts may
consider the entire pleading and cumulative version made in the written
statement. To support his contention, he relied on the decision in Md.
Mohammad Ali (dead) by Lrs vs. Jagadish Kalita and others reported
in (2004) 1 SCC 27.
8. On the other hand, the learned counsel for the respondents
submits that the wet land comprised in survey number 112/06 to an
extent of 0.83 cents is the ancestral property of his grandfather
Narasimha Naicker; that after the death of his grandfather, his father
Murugesa Naicker was in possession and enjoyment of the same till his
death; that the plaintiff and her sister Banu Ammal fraudulently
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obtained the Will from Murugesa Naicker (their father) and got the same
registered, which was subsequently cancelled by his father executing
another Will dated 09.11.1991 in his favour; that he is in enjoyment of
the suit property from 13.11.1991 onwards and thereafter, on 28.07.2003,
he executed a settlement deed infavour of his wife with respect to the suit
property and some other items of lands and that they are in exclusive and
separate possession of the suit property for more than 18 years and
perfected their title by prescription and also adverse possession. It is
further submitted that the revenue records also stands in the name of the
defendants, which proves that the plaintiff was never in possession and
enjoyment of the suit property. It is further submitted by the learned
counsel for the respondents/defendants that both the courts below, after
analysing oral and documentary evidence, rightly dismissed the suit filed
by the plaintiff, which warrants no interference by this Court.
9. Heard on both sides. Records perused.
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10. According to the plaintiff, her father Murugesa Naicker,
executed the Will (Ex.A1) dated 16.09.1991 in her favour to an extent of
0.43 acres out of 0.83 acres in survey No.112/6 in Sirunaiperugal
village, Kancheepuram Taluk, which originally belonged to him and the
same was executed by him in a sound and disposing state of mind.
Thereafter, her father died on 13.11.1991 and the Will came into force.
As per the terms of the Will, the plaintiff became the owner of the suit
property and she was in possession and enjoyment of the same as
absolute owner. While so, the 1st defendant, the brother of the plaintiff,
executed a sham and nominal settlement deed (Ex.B13) dated 28.07.2003
in favour of his wife Chinnaponnu, the 2nd defendant, and during the
year 2008, the 1st defendant high handedly trespassed into the suit
property.
11. The 1st defendant is the brother of the plaintiff and the 2 nd
defendant is the wife of the 1st defendant. The defendants' contention is
that the property comprised in S.No.112/6 measuring 0.83 cents is the
ancestral property of the 1st defendant's grandfather, namely Narasimha
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Naicker, and after his demise, his son Murugesa Naicker, the father of the
plaintiff and the 1st defendant, inherited the same and was in possession
and enjoyment of the property till his death. While so, the plaintiff and
her another sister Banu Ammal fraudulently obtained Ex.A1 Will dated
16.09.1991 from their father, when he was not in sound and disposing
state of mind, and got the same registered. Subsequently, the father
Murugesa Naicker executed the above Will and executed another Will on
09.11.1991 in favour of the 1st defendant and the same was not registered
since the father Murugesa Naicker was not in a position to come to the
Registrar Office. It is their further submission that the mother of the 1 st
defendant was also one of the attestors in the Will dated 09.11.1991.
After the demise of the father on 13.11.1991, the 1st defendant was in
possession and enjoyment of the suit property till 28.07.2003 and
thereafter, he executed a settlement deed in favour of his wife
Chinnaponnu, the 2nd defendant in the suit. Through the above
settlement deed, the suit property and other properties were settled in her
favour and from then onwards, the 2nd defendant is in possession and
enjoyment of the suit properties and mutations in the revenue records
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have also taken place. Hence, the defendants would contend that they are
in exclusive possession of the suit property for more than 18 years and
have perfected title by prescription and also by adverse possession in the
suit property.
12. The short questions to be decided in this Second Appeal is
whether the Will dated 09.11.1991is duly proved by the defendants?.
Whether the courts below erred in placing the burden on the plaintiff
regarding possession of the suit property when admittedly the 1st
defendant is the brother of the plaintiff and whether the findings rendered
by the courts below that the possession was adverse against the plaintiff
is correct?. On the side of the defendants the 1 st defendant was examined
as D.W.1. The Will dated 09.11.1991 was marked as Ex.B1. Admittedly
it is an unregistered Will. The trial court relying on the deposition of
D.W.1 had come to the conclusion that the father was not in a sound and
disposing state of mind before his death. Having found that Ex.B1 is
dated 09.11.1991 and the father of the plaintiff and 1st defendant died on
13.11.1991, the trial court held that Ex.B1 Will would not have been
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executed by the father in sound and disposing state of mind.
12.1. No doubt, executing a last Will automatically revokes or
cancels a previously executed Will, i.e. a Will supersedes an earlier one
when the latter Will is a valid testamentary disposition. However, the
validity of a Will hinges on two primary pillars:
i) The testators capacity to make a Will.
ii) The proper execution of the Will as per legal mandates.
12.2. Section 59 of the Indian Succession Act, 1925, clearly states
that,
“Every person of sound mind not being a minor may dispose
of his property by Will.”
The concept of “sound mind” is crucial. It doesn't mean perfect mental
health, but the ability to understand the nature of the act of making a
Will, the extent of the property being disposed of, and the persons who
are the natural objects of the testator's bounty.
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12.3. The Hon'ble Supreme Court has repeatedly emphasised that
the testator must be of sound disposing mind and capable of
understanding the nature and effect of the dispositions at the time of
execution. In the case of H.Venkatachala Iyengar vs. B.N.
Thimmajamma reported in 1958 SCC online SC 31 , the Hon'ble
Supreme Court held that if there are “suspicious circumstances”
surrounding the execution of the Will, the propounder must remove those
suspicions to the satisfaction of the Court. In the case of Shashi Kumar
Banerjee vs. Subodh Kumar Banerjee, reported in 1963 SCC online SC
114 the Hon'ble Supreme Court reiterated that the onus is on the
propounder to prove the Will, and if there are suspicious circumstances,
they must be dispelled.
12.4. Section 63 of the Indian Succession Act, 1925, prescribes the
essential formalities for the execution of an unprivileged Will.
i) The testator shall sign or shall affix his mark to the Will, or it shall
be signed by some other persons in his presence and by his
directions.
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ii) The signature or mark of the testator, or the signature of the person
signing for him., shall be placed that it shall appear that it was
intended thereby to give effect to the writing as a Will. The Will
shall be attested by two or more witnesses, each of whom as 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 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.
12.5. Section 68 of the Indian Evidence Act, 1872, deals with the
proof of execution of documents required by law to be attested. It
mandates that if a document is required by law to be attested it shall not
be used as evidence until atleast one attesting witness has been called for
the purpose of proving its execution, if an attesting witness is alive and
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subject to the process of the court and capable of giving evidence.
12.6. In the case of Meena Pradhan vs. Kamla Pradhan and
others reported in (2023) 9 SCC 734 the Hon'ble Supreme Court
reaffirmed that a Will, even if executed mere days before death, can be
legally valid if it complies with the statutory requirements of Section 63
of the Indian Succession Act and Section 68 of the Indian Evidence Act.
In the case of Shivakumar vs. Sharanabasappa reported in (2021) 11
SCC 277, the Hon'ble Supreme court reiterated that suspicious
circumstances must be “legitimate, real and germane” to the execution of
the Will and not based on mere conjectures or surmises. It was also
observed that the courts must examine the Will cautiously and with
circumspection, especially when suspicious circumstances are present.
Therefore, the 1st defendant propounder of the Will in the present case
bears the burden of removing all legitimate suspicions before the
document can be accepted as genuine.
12.7. In the present case, the trial court disbelieved the Will
propounded by the 1st defendant based on the deposition given by the 1st
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defendant. The relevant portion is extracted hereunder:
"f. On further perusal of the deposition of DW1
during his cross examination, it is found that D.W.1 has
deposed as follows:
'vd; je;ij fhykhtjw;F xU thuk; gj;J
ehl;fSf;F Kd;G ,Ue;Nj RaepidT ,y;yhky;
,Ue;jhh; vd;why; rhpjhd;.”
From the above deposition it is clear that D.W.1 has
admitted that his father was not in sound and disposing
state of mind even one week or 10 days before his death.
On perusal of records, it is found that Ex.B1 is dated
9.11.1991 and the father of the 1st defendant has expired on
13.11.1991. Hence the evidence of D.W.1 himself does not
support his case that the Will dated 09.11.1991 was
executed by his father in sound and disposing state of mind.
g. In the above circumstances, this court finds that the
Will filed by defendants is not proved beyond suspicion.---"
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The defendant himself admitted that his father was not in sound state of
mind before his death. Hence, the trial court has rightly found that the
testator was not in sound state of mind at the time of executing the
alleged Will. The first appellate court without examining the evidence of
the 1st defendant, came to the conclusion that the Will was executed by
the father of the 1st defendant. Moreover, the mother, one of the attestors
of the Will, though alive, was not examined. The other attestor examined
on the side of the defendants said to have purchased the property from
the 1st defendant. Hence, his evidence cannot be relied upon to prove the
execution of the Will. The trial court has rightly analysed the above facts
while rejecting the Will propounded by the 1st defendant. No perversity
or infirmity found in the above findings of the trial court.
13. Now it has to be seen whether the plaintiff is entitled for
declaration of title and recovery of possession in the suit property. In the
present case, the plaintiff claims absolute ownership over the suit
property under the guise of the Ex.A1 Will said to have been executed
by her father on 16.09.1991. It is not in dispute that the father died on
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13.11.1991. According to the plaintiff, the said Will dated 16.09.1991
came into force and as per the terms of the Will, she became the absolute
owner of the suit property and that she was in possession and enjoyment
of the same as absolute owner. The further case of the plaintiff is that the
1st defendant executed a sham and nominal settlement deed in favour of
his wife Chinnaponnu and high handedly trespassed into the suit property
during June 2008. However, the plaintiff failed to prove that she was in
absolute possession and enjoyment of the suit property after the demise
of her father in the year 1991 till the alleged trespass in June 2008. On
the other hand, the defendants have produced the revenue records in their
favour to establish their possession and enjoyment in the suit property.
For recovery of possession, the plaintiff ought to have filed the suit
within a period of 12 years commencing from the date on which she was
dispossessed from the suit property. However, except for the vague
statement in the plaint that the defendants have trespassed into the suit
property during June 2008, there is nothing on record to prove the above
allegations. Moreover, there is no semblance of evidence to establish
that after the death of the father in the year 1991 the Will was acted upon
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and that the plaintiff took possession of the property. Since the plaintiff
claims absolute ownership over the property and not as a co-owner, the
judgment relied upon by the learned counsel for appellant/plaintiff is not
applicable to the facts and circumstances of the case. The suit ought to
have been filed within a period of 12 years for claiming recovery of
possession. Since the alleged trespass was not proved on the side of the
plaintiff, the suit ought to have been filed within a period of 12 years
from the date on which the right accrues. Since the plaintiff is claiming
right over the suit property under the Will executed by her father, she
ought to have filed the above suit immediately when the Will came in
force. Hence the courts below have rightly held that the plaintiff is not
entitled for the relief of declaration of title to the suit property as well as
to the relief of recovery of possession. No perversity or infirmity is
found in the judgments rendered by the courts below. Therefore, in view
of the abovesaid reasons, I hold that no substantial question of law is
involved in the present appeal.
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14. In the result,
i. The Second Appeal is dismissed. No costs.
ii. the decree and judgment dated 22.08.2017 passed in A.S. No.47
of 2013, on the file of the Subordinate Judge, Kancheepuram, is
set aside as far as the proof of Will is concerned. The rest of the
findings of the first appellate court is confirmed.
iii. The Judgment and decree dated 16.07.2013 passed in O.S.No.14
of 2009, on the file of the Additional District Munsif,
Kancheepuram, is upheld.
12.09.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Subordinate Judge, Kancheepuram
2. The Additional District Munsif, Kancheepuram
3. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J
bga
Pre delivery Judgment in
12.09.2025
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