[Cites 10, Cited by 0]

Madras High Court

P.Megalarani vs Rajagopalan, (Died) on 10 April, 2026

Author: N.Anand Venkatesh

Bench: N.Anand Venkatesh

                                                                                SA (MD)No.9 of 2008


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                       Reserved on       :     10.04.2026
                                       Pronounced on     :     17.04.2026

                                                     CORAM:

                             THE HONOURABLE Mr.JUSTICE N.ANAND VENKATESH

                                             SA (MD)No.9 of 2008
                                                    and
                                            CMP(MD) No.1320 of 2023

                     1.P.Megalarani
                     2.C.Vanathi
                     3.T.Packirisamy                               ..    Appellants/Defendants
                     2,4,&9


                                                        Vs.

                     1.Rajagopalan (died)                      ... 1st respondent/plaintiff
                     2.Sundarambal                             ... 2nd respondent/1st defendant
                     3.R.Swaminathan                           ... 3rd respondent/3rd defendant
                     4.K.Prema
                     5.K.Akila
                     6.K.Kamalavasuki
                     7.Senthil                                 .. Respondents/defendants 5-8
                     8.R.Lalitha                               .. Respondent/Plaintiff (LR)

                     (8th respondent has been impleaded as LR of the deceased
                     R1 in MP No.1 of 2011 vide order dated 02.04.2013)

                     1/28




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                                                                                           SA (MD)No.9 of 2008


                                  Appeal filed under Section 100 of the Code of Civil Procedure,
                     against the judgment and decree in AS No.38 of 2006 dated 02.07.2007 on
                     the file of the Principal District Court, Thanjavur reversing the judgment
                     and decree passed in OS No.2 of 2002 dated 05.01.2006 on the file of the
                     Sub Court, Pattukottai.
                                        For Appellants             : Mr.Meenakshi Sundaram
                                                                   Senior counsel for
                                                                   Mr.V.Muthukamatchi
                                        For Respondent             : Mr.V.K.Vijayaraghavan for
                                                                   Mr.M.R.S.Prabhu

                                                            JUDGMENT

The second appeal has been filed against the the judgment and decree

in AS No.38 of 2006 dated 02.07.2007 on the file of the Principal District

Court, Thanjavur reversing the judgment and decree passed in OS No.2 of

2002 dated 05.01.2006 on the file of the Sub Court, Pattukottai.

2. The defendants 2,4 and 9 are the appellants in the second appeal.

3. The first respondent/plaintiff filed a suit on the ground that the suit

property originally belonged to one Manickam Chettiyar. He had two sons,

viz., Kandasamy Chettiyar and Sambamoorthy Chettiyar. He settled the

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property in favour of his sons through a registered settlement deed dated

18.12.1901. The suit property was described as 'C' schedule first item in the

settlement deed. The said Sambamoorthy Chettiyar died as a bachelor.

Ultimately, one Kamalathammal inherited the property through her mother

Packiyathammal, who is the wife of Kandasamy Chettiyar. The further case

of the plaintiff is that during her life time Kamalathammal executed a Will

(Ex.A2) in favour of the plaintiff, 3rd defendant, one Krishnamoorthy and

the first and second defendants. The said Will came into effect on the death

of the said Kamalathammal. It is further stated in the plaint that other

sharers namely Sundarambal, Krishnamoorthy and Saminathan relinquished

their shares through registered release deeds dated 17.03.1994 and

25.05.1994 respectively for valuable consideration. According to the

plaintiff, the second defendant alone did not surrender her share to the

plaintiff. Accordingly the plaintiff claimed for four shares in the suit

property and second defendant was entitled for one share. Since the second

defendant was not amenable for partition, the present suit came to be filed

seeking for the relief of partition, division and allotment of 4/5th share in the

suit property.

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4. The second defendant filed a written statement, which was adopted

by the 4th and 9th defendants. They took a stand that the said Kamalathammal

had not executed any Will in favour of the plaintiff and her children and that

the said Will is not true, valid and binding on the defendants. They also

denied the release deeds that were executed by other sharers. Consequently

these defendants took a very specific stand that the plaintiff is not entitled

for 4/5th share in the suit property.

5. The stand taken by these defendants is that the 9th defendant

married one Saroja and after her demise, he married the second defendant

and since no Sreedhana was given during the marriage, Kamalathammal,

executed a Will dated 15.12.1980 (Ex.B1) and bequeathed the suit property

in favour of the second defendant. Thereafter the second defendant was

enjoying the property absolutely. This Will was already marked in a suit

filed in OS No.416/1998 on the file of the District Munsif Court, Pattukottai

and it was marked as Ex.B13 and that the plaintiff, first defendant, third

defendant and 5th defendant were also parties in the said suit. Since the

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second defendant was in possession and enjoyment of the suit property,

patta was also granted in her favour. Accordingly these defendants sought

for the dismissal of the suit.

6. The plaintiff examined PW1 to PW3 and marked Ex.A1 to A4.

Defendants 2,4 and 9 examined DW1 to DW4 and marked Ex.B1 to B31.

7. The trial Court, on considering the pleadings, facts and

circumstances of the case and on appreciation of evidence, came to a

conclusion that the Will that was relied upon by the plaintiff is not valid and

has not been proved in the manner known to law and therefore, the suit

came to be dismissed by judgment and decree dated 05.01.2006.

8. Aggrieved by the judgment and decree passed by the trial Court,

the plaintiff filed AS No.38/2006 before the Principal District Court,

Thanjavur. The appellate Court, on appreciation of evidence and on

considering the facts and circumstances of the case, confirmed the findings

of the trial Court to the effect that the plaintiff has not proved the Will

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(Ex.A2) in accordance with law. However, insofar as the Will that was relied

upon by the second defendant (Ex.B1), the lower appellate Court came to a

conclusion that the Will was not proved and that apart, there are suspicious

circumstances which vitiates the very execution of the Will. In the light of

this finding, since the suit was filed for the relief of partition, the appellate

Court was pleased to fix the respective shares of the parties by applying the

law of inheritance and it was held that the plaintiff was entitled to 4/6 th share

and Saroja and the 2nd defendant are entitled for 1/6th share each and

accordingly the appeal was allowed and the judgment and decree passed by

the trial Court was set aside by the appellate Court by judgment and decree

dated 02.07.2007. Aggrieved by the same, the present second appeal has

been filed before this Court.

9. When the second appeal was admitted, this Court framed the

following substantial questions of law on 08.01.2008:

“Whether the approach of the first appellate Court is correct in allowing the appeal without giving any finding regarding the genuineness of Ex.A2 Will, on the basis of

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which the appellants has claimed partition of the suit property?

2.Whether the first appellate Court is right in disbelieving Ex.B2 Will which has been duly proved by DW2 and DW3 the attestor and the scribe of the Will, which are in compliance with Section 68 of the Indian Evidence Act and Section 63 of Indian Succession Act?”

10. The learned Senior counsel appearing for the appellants submitted

that the first appellate Court went wrong in bringing about a new ground as

if the execution of the Will is shrouded in suspicious circumstances and this

was not even a ground that was raised in the grounds of appeal. The learned

Senior counsel submitted that the appellate Court has drawn inferences even

without putting the appellants on notice, since this was not a ground that

was pleaded nor was any suggestion made at the time of cross-examination

of the witnesses. The learned Senior counsel further submitted that the

findings rendered by the first appellate Court as if the 2 nd defendant did not

prove the Will is in complete disregard to the evidence available on record,

wherein, one of the witnesses to the Will (Ex.B1) was examined as DW2,

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who has attested his signature in the Will. The learned Senior counsel, in

order to substantiate his submission, relied upon the judgment of the Apex

Court in Kishundeo Rout and Others v. Govind Rao and Others reported in

2025 SCC online SC 1665 and the relevant portions relied upon is extracted

hereunder:

“24. It is important to remember that the basic rule of law of pleadings is, that a party can only succeed according to what he has alleged and proved, otherwise, on the principle of secundum allegata et probata, a party is not allowed to succeed, where he has not set up the case which he wants to substantiate. In the words of Lord Westbury in Eshan Chunder Singh v. Shama Chunder reported in 11 M.I.A.:— “……………………..the determination in a case should be founded upon the case either to be found in the pleadings as involved in or consistent with the case thereby made………………….. It will introduce the greatest amount of uncertainty into judicial proceedings, if final determination of causes, is to be founded upon inferences, at variance with the case that the plaintiff has pleaded……………… and is not taken to prove…………………. they desire to have the rule observed that the state of fact and the equities and ground of relief originally alleged and pleaded by the plaintiff, shall not be departed from.” (emphasis supplied)

25. This rule that pleadings and proof must correspond, rests upon the principle that no party should be prejudiced by

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being taken by surprise by varying the case as originally Set up. In the words of Mahajan, J., in Trojan and Co., Ltd. v. RM. N. N. Nagappa Chettier, (1953) 1 SCC 456 : 1953 SCR 789 (806). “It is well settled that decision of a case cannot be based on grounds outside the pleadings of the parties and it is a case pleaded that has to be found.”

11. Per contra, the learned counsel for the first respondent/plaintiff

submitted that when DW2 was put in the box, the Will itself was not shown

to the witness and therefore, the Will has not been proved in accordance

with Section 68 of the Evidence Act. It is further submitted that Ex.B1 that

was relied upon, on the face of it, shows that they have writings over the left

hand thumb impression and since the thumb impression has been taken, the

executrix ought to have been read over the contents of the Will and it had to

be duly certified and since the same was not done, the Will cannot be acted

upon. The learned counsel further supported the findings rendered by the

first appellate Court to the effect that the very execution of the Will is

surrounded by suspicious circumstances.

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12. The learned counsel for the first respondent/plaintiff in order to

substantiate his submissions, relied upon the following judgments:

(a) Govindan Chettiar v. Akilandam alias Seethalakshmi and 24

others. reported in 1997 (3) LW 673;

(b) Duraikannu Padayachi v. Meera reported in 2003 (3) MLJ 67;

(c) Enga Behera and another v. Braja Kishore Nanda and others

reported in 2008 (1) LW 241;

(d) S. Nagarathinam v. S. Balakathiresan and 13 others reported in

1994 (1) LW 133.

13. This Court has carefully considered the submissions made on

either side and the materials available on record.

14. The crux of the issue involved in the present case is the rival

claim of the parties rested in the Will that was relied upon by them namely,

Ex.A2 relied upon by the plaintiff, per contra, Ex.B1 relied upon by the

second defendant. Insofar as Ex.A2 Will is concerned, both the Courts

concurrently held that the said Will has not been proved in the manner

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known to law and therefore, it is not necessary for this Court to once again

go into the issue of the validity of Ex.A2, which was not even seriously

canvassed on the side of the first respondent/plaintiff. That leaves this Court

to deal with the findings of the lower appellate Court regarding the validity

of Ex.B1 that was relied upon by the second defendant. If the said finding is

interfered, the said property will exclusively go in favour of the 2nd

defendant, else, it will be shared in the proportion as fixed by the first

appellate Court.

15. In civil proceedings, the soul of the case is always in the

pleadings. No evidence can be adduced on an issue unless factual

foundation has been laid by proper pleadings. The judgment that was relied

upon by the learned senior counsel for the appellant in Kishundeo Rout's

case referred supra only reiterates this settled position of law. The party

must be made to face only those facts, which have been put against him. He

should not be taken by surprise by certain facts which were not put to him

and which ultimately is held against him. That will be in violation of

principles of natural justice. In short, the rule of pleadings is nothing but

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reiteration of the principles of natural justice, where both parties are made

aware of the stand taken by either of them and a Court will not traverse

beyond the pleadings by relying upon the evidence, which is not supported

by pleadings and render findings by taking one of the parties by surprise.

16. In the case in hand, the plaintiff was relying upon the Will marked

as Ex.A2. As observed supra, both the Courts have held that this Will has

not been proved in accordance with law and hence, is not valid. The second

defendant had relied upon the Will marked as Ex.B1. When this factual plea

was taken by the second defendant in the written statement, the plaintiff had

filed a reply statement to the effect that the Will that was relied upon by the

second defendant is forged and fabricated document and that in the other

suit in which the Will was relied upon in OS No.416 of 1988, the plaintiff

had remained exparte and therefore he was not aware of the production of

the said Will.

17. It is true that the Code of Civil Procedure does not contemplate

filing a rejoinder by denying the averments/allegations made in the written

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statement and failure to file rejoinder cannot be treated as an admission of

the plea in the written statement. Useful reference can be made to the

judgment of this Court R. Selvaraj Vs. V.P. Periasamy reported in 2011 (6)

CTC 887.

18. The next question that will arise is as to what will happen if a new

fact is pleaded in a written statement and how else the same can be denied

or refuted by the plaintiff. The accepted procedure is that such denial or

disputing the stand taken by the defendants can take place in the course of

evidence by putting necessary questions to the witness in the course of

cross-examination. That is considered to be an effective denial of the stand

taken by the defendants and reiteration of the stand taken by the plaintiff.

19. In the considered view of this Court, even though the Code of

Civil Procedure does not contemplate filing a rejoinder for a written

statement, if any new facts are pleaded by the defendant, it will always be

prudent to file a rejoinder or reply statement by refuting that stand and

specifically plead the stand of the plaintiff with regard to the stand taken by

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the defendant putting forth a new fact. This practice will sufficiently take

care of the interest of the plaintiff to put forth their specific stand in terms of

pleadings and also to effectively cross-examine the witness, who, by then,

will be aware of the stand of the plaintiff with regard to a new fact that has

been put forth by them. This practice is now effectively followed in

commercial suits filed under the Commercial Courts Act 2015.

20. In the light of the above discussion, this Court will now look into

the evidence of DW1 and DW2 and more particularly see as to what was

brought out during the cross-examination and see if the plaintiff had

established any basis to enable the first appellate Court to conclude that the

Will is shrouded under suspicious circumstances.

21. Before going into the above process, this Court must quickly deal

with one of the finding rendered by the first appellate Court to the effect

that DW2 has not identified the thumb impression of Late Kamalathammal

in Ex.B1 in the Court. The other related issue is the one raised by the

learned counsel for the first respondent/plaintiff to the effect that the

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original Will itself was not shown to DW2.

22. The above finding rendered by the first appellate Court is

unsustainable since DW2 in his evidence specifically states as follows:

                                          “...mjd;    gpwF    fkyj;jk;khs;    mry;    capypy;
                                  Nuifitj;jhh;.        me;j     Nuifia       ehd;    ghh;j;Njd;.

vf;];gpl; V1 y; cs;s ifNuif fkyj;jk;khs; itj;jJ jhd;. me;j capypy; ehd; rhl;rp ifnaOj;J Nghl;Nld;...”

23. The above answer given by DW2 makes it very clear that the

original Will was shown to DW2 and he has specifically stated that he saw

Kamalathammal putting her Left Thumb Impression and that LTI was

identified as Ex.A1. Therefore, the finding that was rendered by the lower

appellate Court as if DW2 did not identify the thumb impression runs

contrary to the evidence available on record.

24. DW3 is none other than the scribe of the Will, who is said to be

Ex-Karnam of Athikottai. A careful reading of the evidence of DW2 and

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DW3 shows that the focus was not in establishing any suspicious

circumstances around the execution of the Will but it was on the right over

the property and how the executrix may not have been aware about what

was bequeathed through the Will and as to how the said Will was not

properly attested by the witnesses. Even in the evidence of the plaintiff,

who was examined as PW1, the focus was upon establishing Ex.A2 Will

and there is nothing in the evidence on the suspicion of the Will executed in

favour of the 2nd defendant.

25. In the case in hand, the Will was executed by Kamalathammal on

15.12.1980 and she died only in the year 1986. Thereafter the second

defendant had acted upon the said Will and had produced overwhelming

evidence that she is in possession and enjoyment of the suit property. Even

the patta was issued in favour of the second defendant as early as in the year

1992 itself.

26. Apart from the above, in the suit that was filed by some third party

where all the parties to the present proceedings were added as defendants, it

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was the second defendant, who effectively contested the said suit and had

marked this Will (Ex.B1) to establish the right. The trial Court, while

dealing with Ex.B1 Will, has carefully analyzed the evidence and came to a

categoric conclusion that the Will has been proved in accordance with

Section 68 of the Evidence Act. The trial Court has considered this issue

elaborately by taking into account various judgments, which deals with the

proof of Will. The trial Court also took into consideration the circumstances

under which Kamalathammal had executed the Will in favour of the second

defendant. The trial Court also considered the right of Kamalathammal in

executing the Will. Ultimately it was held that Ex.B1 has been proved by

the 2nd defendant.

27. It is very pertinent to take note of the fact that even in the grounds

of appeal that was filed by the plaintiff, not a single ground has been raised

regarding suspicious circumstances. However, the first appellate Court

went on a tangent and has rendered certain findings, which neither has its

basis on the pleadings nor on the suggestions that were put to the witnesses

when they were examined. In short, the first appellate Court has drawn

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inferences without any basis or without even a specific ground raised in the

grounds of appeal and has rendered a finding that the execution of the Will

is surrounded by suspicious circumstances and therefore, Ex.B1 is not true

and valid. While undertaking this exercise, the first appellate Court has not

even said as to how the finding rendered by the trial Court is erroneous

while setting aside the decree. It is the duty of the appellate Court while

setting aside the judgment to clearly state the reasons for the decision as

mandated under Order XLI Rule 31 of the Code of Civil Procedure. That is

completely absent in the case in hand.

28. It is true that while the Court decides about the validity of the

Will, it has to sit in the arm chair of the executant to ensure that the actual

wish of the executant is fulfilled. However, this exercise can be done only

based on what has been pleaded before the Court and what has been

suggested to the witnesses and it cannot be performed on mere assumptions

and surmises.

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29. I recall one of my earlier judgment in Tmt.Renuka Subbu Singh

v. Kannaiyan @ Lakshmi Narayanan and others reported in 2022 (2) LW

379, where I had an occasion to deal with the issue as to how the Court must

deal with the issue of suspicious circumstances surrounding a Will and how

it must be dealt with. The relevant portions are extracted hereunder:

17.The principles governing the adjudicatory process concerning proof of Will is summarised as follows:

1.Ordinarily, a Will has to be proved like any other document, applying the usual test of the satisfaction of the prudent mind. Proof with mathematical accuracy is not to be insisted upon.

2.A Will is required to be attested and cannot be used in evidence until at least one attesting witness has been called for the purpose of proving its execution.

3.The initial onus lies on the propounder and can be taken to have been primarily discharged on proof of essential facts which go into the making of a Will.

4.If execution of Will is surrounded by suspicious circumstances, then the case stands on a different footing and the onus is heavier on the

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propounder to remove all legitimate suspicions.

5.When a Will is challenged on the grounds of fabrication, fraud, undue influence, coercion etc., then such pleas have to be proved by the person alleging the same. Even in the absence of any such pleas if the circumstances surrounding the execution of the Will give rise to doubt as to whether the Will had been executed by the Testator and/or as to whether the Testator was acting of his own free Will, it is a part of the initial onus of the propounder to remove all such reasonable doubts.

6.A circumstance is suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. The suspicious features must be real, germane and valid and not merely the fantasy of the doubting mind.

7.The question whether any particular feature or a set of features qualify as suspicious would depend on the facts and circumstances of each case. Circumstances like shaky or doubtful signature, unjust exclusion of legal heirs,

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particularly dependents, active or leading by a beneficiary in execution of a Will are some circumstances which may give rise to suspicion.

                                  However,       these   circumstances    are    only
                                  illustrative     and    not    exhaustive.     Such

circumstances could be legitimately explained by the propounder. However, suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the Testator and his signature coupled with proof of attestation.

8. When a Will is surrounded by suspicious circumstance/s, the test of satisfaction of judicial conscience comes into operation.

9.Where execution of a Will is, shrouded in suspicion the party setting up the Will has to offer cogent and convincing Explanation of the suspicious circumstances surrounding the Will.

18.The Courts have considered the following circumstances to be suspicious circumstances while dealing with the facts of the case on hand. By no means, this list can be said to be exhaustive and it is more illustrative to get a fair idea while dealing with a

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case concerning suspicious circumstances at the time of execution of the will. The illustrative list of suspicious circumstances culled out from various judgments are extracted hereunder:

1.Doubt with regard to mental condition of the Testator despite his signature or mark found in the Will.

2.Bequest appears to be unnatural or unfair in the light of surrounding circumstances.

3.Propounder taking an active part in execution of Will which confers substantial benefit on him.

4.Inordinate delay in disclosing the Will, may also amount to suspicious circumstance, provided such delay is coupled with some doubt regarding due execution itself.

5.Presence of beneficiary and his or her taking part in execution of Will.

6.Doubt with regard to signature or mark of the Testator.

7.Glaring discrepancies and

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anomalies, like irregular spacing between lines, placing of signatures etc.

8.Ill health or advanced age of the Testator.

9. No reasons assigned for bequests in favour of third parties or distant relatives.

10.Material interpolations and over writings.

11. Incorrect description of properties.

12.Wrong description of persons/ beneficiaries.

19.There is no straight jacket formula to ascertain suspicious circumstances. Suspicious circumstances may arise differently in different sets of facts concerning the Will. Mere suspicion also does not ordinarily affect a Will which is otherwise natural. Equally, suspicion can be dispelled by strong and positive evidence by examining concerned persons including the attesting witnesses. In any event, only such suspicion that is inherent in the transaction itself would amount to a suspicious circumstance which would be required

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to be reasonably explained to the satisfaction of the Court. In other words, the suspicion should be surrounding the due execution of Will itself and not something that arises subsequently or by a result of conflicting testimony of witnesses. A circumstance can be said to be suspicious when it is not normal or not normally expected in a normal situation or is not expected of a normal person.

20. It is a trite law that the Court that deals with the proof of Will is a court of conscience and not a court of suspicion. It is now well settled that the propounder has to satisfy the conscience of the court and the court while dealing with the Will should start with the presumption that the Will is genuine and it should not be a Court of suspicion. Where the execution of the Will is surrounded by suspicious circumstances, it is for the propounder of the Will to remove that suspicion. This burden would be heavier when the propounder was involved in the execution of the Will and was also a beneficiary under the Will.

21. A Will is one of the most solemn document that is dealt with by a court since the executor of the Will is no more alive at the time when the Will is acted upon. Hence, the court

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is not merely confined to judge the credibility of the witnesses merely on their testimony and demeanour and it is the duty of the court to look into the surrounding circumstances as well.

This additional burden is cast upon the court since the court has to ultimately fulfil the wishes of the testator who is no more alive. Keeping all these principles in mind, this court will now deal with the facts of the present case and the findings rendered by both the Courts below.

30. While applying the above test to the facts of the present case, this

Court finds that mere suspicion as is attempted to be projected by the lower

appellate Court will not ordinarily affect the Will, which is otherwise

natural. This Court does not find that such suspicion as is raised by the

lower appellate Court is inherent in the transaction itself. In other words,

this Court does not find any suspicion in due execution and this Court does

not find anything abnormal surrounding the execution of the Will.

31. In the light of the above discussions and reasonings, this Court

finds that the lower appellate Court went wrong in rendering a finding that

the Will is surrounded by suspicious circumstances and such findings have

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been rendered on mere presumptions without the same having any basis in