[Cites 9, Cited by 0]
Madras High Court
N.Rajamani @ Rajammal vs Shanmugadevi on 25 February, 2026
S.A.No. 1064 of 2013
and CRP.No.1223 of 2018
1IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.02.2026
CORAM:
THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE
S.A.No.1064 of 2013
and M.P.No.1 of 2013
& CRP.No.1223 of 2018
& CMP No.6248 of 2018
S.A.No.1064 of 2013
1. N.Rajamani @ Rajammal
2. N.Palanisamy (died)
3. M.Mallika
4. P.Karthick ...Appellants/Appellants
/Defendants
Appellants 3 and 4 brought on record as legal heirs of the deceased A2
viz Palanisamy Vide Court order dated 07.03.2022 made in
CMP.No.15549 of 2021 in S.A.No.1064 of 2013 (CVKJ)
Versus
1. Shanmugadevi
2. Palaniammal
3. Kamalam ... Respondents/Respondents
/Plaintiffs
PRAYER in S.A.:
Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree passed in A.S.No.24 of 2008
dated 19.01.2012 on the file of the Principal Sub Court at Tiruppur in
1/15
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S.A.No. 1064 of 2013
and CRP.No.1223 of 2018
confirming the judgment and decree made in O.S.No.213 of 2005 dated
04.04.2008 on the file of the District Munsif cum Judicial Magistrate at
Palladam, Coimbatore district.
APPEARANCE OF PARTIES:
For Appellants : Mr.V.Raghavachari, Senior Counsel
For Mr.Ma.P.Thangavel
For R1 to R3 :Mr.R.Sankarappan
CRP.No.1223 of 2018
1. N.Rajamani @ Rajammal
2. N.Palanisamy (died)
3. M.Mallika
4. P.Karthick ...Petitioners/Respondents
/Respondents/Defendants
Petitioners 3 and 4 brought on record as legal heirs of the deceased P2 viz
Palanisamy Vide Court order dated 07.03.2022 made in CMP.No.17742
of 2021 in S.A.No.1223 of 2018 (CVKJ)
Versus
1. Shanmugadevi
2. Palaniammal
3. Kamalam ...Respondents/Petitioners
/Petitioners/Plaintiffs
PRAYER in CRP.:
2/15
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S.A.No. 1064 of 2013
and CRP.No.1223 of 2018
Civil Revision Petition filed under Section 115 of the Civil Procedure
Code to set aside the petition and order passed in E.A.No.02 of 2018 in
E.P.No.17 of 2017 in O.S.No.213 of 2005 dated 06.03.2018 on the file of
the District Munsif Court at Sulur by allowing the above Civil Revision
Petition.
APPEARANCE OF PARTIES:
For Petitioners : Mr.V.Raghavachari, Senior Counsel
For Mr.Ma.P.Thangavel
For Respondents : Mr.RSankarappan
COMMON JUDGMENT
Heard.
2. This Second Appeal is filed by the defendants against the judgment
and decree dated 19.01.2012 passed in A.S.No.24 of 2008 by the
Principal Sub Court at Tiruppur, confirming the judgment and decree
dated 04.04.2008 passed in O.S.No.213 of 2005 by the District Munsif
cum Judicial Magistrate Court, Palladam. The connected Civil Revision
Petition arises from the order dated 06.03.2018 in E.A.No.02 of 2018 in
E.P.No.17 of 2017 in the same suit.
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3. For the sake of convenience, the parties are referred to as they are
arrayed before the trial Court.
4. The suit is for declaration of title and recovery of possession. The
plaintiffs are three sisters. They says that the suit property (house and
site) was their father Subbanna Gounder’s self-acquired property,
purchased under a registered sale deed dated 05.06.1981. They state that
he died on 18.12.2003 and that they alone inherited the property as his
legal heirs. They says that the defendants were permitted to stay only to
look after their father, and later continued to stay only with the plaintiffs’
permission. They allege that in 2004, when asked to vacate for
partition/arrangement, the defendants vacated but later broke open the
lock, re-entered and refused to hand over possession. After notice dated
08.01.2005, the defendants claimed rights under an alleged Will dated
09.06.1985, which the plaintiffs deny as false and fabricated. Hence, the
suit.
5. The defendants admit that Subbanna Gounder purchased and owned
the property under the sale deed dated 05.06.1981. They deny the
plaintiffs’ version on possession and re-entry. They say the plaintiffs
were married long before the purchase, lived in their matrimonial homes,
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and did not maintain cordial relations with, or take care of, their father.
They refer to maintenance proceedings filed by the plaintiffs’ mother in
1978 in M.C.No.20/1978 before the Sub Divisional Judicial Magistrate,
Tirupur, and state that Subbanna Gounder paid maintenance till her death
and was thereafter neglected by the plaintiffs. According to the
defendants, Subbanna Gounder executed a registered Will dated
09.06.1985 bequeathing the suit property to the first defendant, and title
vested in her on his death. They further say the first defendant executed a
gift deed dated 31.01.2005 in favour of the second defendant, who claims
possession as absolute owner. They therefore contend that the plaintiffs
have no right, the suit lacks cause of action, and the valuation and court-
fee are incorrect.
6. Before the Trial Court, the plaintiffs examined P.W.1 to P.W.4 and
marked Exs.A1 to A12. The defendants examined D.W.1 to D.W.4 and
marked Exs.B1 to B24. The defendants relied mainly on the registered
Will dated 09.06.1985 (Ex.B20) and the settlement/gift deed dated
31.01.2005. The Trial Court noted an earlier Will dated 25.02.1980
relating to provident fund and gratuity in favour of the second defendant
and his sister Indrani (Ex.A12/Ex.B19), and considered the plea that
Ex.B19 stood cancelled by Ex.B20. On Ex.B20, the Trial Court noted
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that the scribe (D.W.4) was examined, but since he was not cross-
examined, his evidence was not relied upon. The Trial Court held that
Ex.B20 was not proved in accordance with law, as no attesting witness
was examined and the requirements of Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872
were not satisfied. The suit was therefore decreed in favour of the
plaintiffs, with a direction to deliver possession.
7. The defendants appealed. The First Appellate Court held that
examining the scribe was not sufficient to prove the Will under Section
68 of the Evidence Act, since it was not shown that the attesting
witnesses were dead or unavailable. It also noted that D.W.4 was not
cross-examined and the plaintiffs had no opportunity to test the Will. It
therefore confirmed the Trial Court decree and dismissed the appeal.
8. In this Second Appeal, the defendants contend that since Ex.B20 is a
registered Will, the Courts below ought to have presumed it to be valid
and that insisting on proof was illegal. They also contend that since the
plaintiffs alleged fraud/forgery, they had to plead particulars under Order
VI Rule 4 CPC and prove those allegations. On these grounds, they
propose substantial questions of law on whether the Courts below were
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right in requiring proof of Ex.B20 and whether their approach was
contrary to Sections 101–102 and 114 of the Evidence Act.
9. While the Second Appeal remained pending at the admission stage,
this Court dealt with C.M.P.No.13423 of 2023 and, by order dated
25.10.2024, directed the First Appellate Court to give the defendants an
opportunity to prove the Will (Ex.B20) in accordance with the Indian
Succession Act and the Indian Evidence Act, and to return findings. The
First Appellate Court then recorded additional evidence (including
D.W.5), marked Exs.B25 to B27, and returned a finding that Ex.B20 is
still not proved, and that the earlier dismissal of the appeal stands.
10. Learned counsel for the defendants/appellants submits that the
concurrent findings are perverse. It is argued that D.W.5, having
identified his father’s signature in one part of the document, could not
deny it as an attesting signature, and therefore the Will should not have
been held unproved. It is also submitted that no suspicious circumstances
were brought out to discredit the Will; that the estrangement between
Subbanna Gounder and his wife is established; and that the defendants
cared for the deceased till his death. It is further argued that the Courts
below went beyond the scope of this Court’s directions and acted
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contrary to Section 69 of the Evidence Act, and that additional substantial
questions of law therefore arise and the registered Will should be
accepted as the last wish of the deceased. Reliance is placed on 2026
SCC OnLine SC 106 [Hemalatha(D) by Lrs Vs. Tukaram (D) by Lrs and
others] to contend that a registered Will carries assurance of validity
11. It is well settled that the person who relies on a Will must prove that
it was properly executed and properly attested, as required by Section 63
of the Indian Succession Act, 1925 read with Sections 68 or 69 of the
Indian Evidence Act, 1872. In this case, the defendants relied on Ex.B20
as the Will, but before the Trial Court they did not examine any attesting
witness. They gave no reason for not doing so. They also did not examine
any person who knew the handwriting of the attesting witnesses, so as to
meet the requirement of Section 69 of the Evidence Act. Although the
scribe of the Will was examined as D.W.4, he did not submit himself for
cross-examination, and therefore his evidence cannot be relied upon. In
these circumstances, both Courts were justified in holding that the Will
was not proved in the manner required by law and in decreeing the suit.
12. The defendants filed this Second Appeal without any application for
permission to produce additional evidence. Nearly ten years later, they
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filed a Civil Miscellaneous Petition seeking such permission. Even before
admitting the Second Appeal, this Court gave the appellants an
opportunity to prove the Will. The Court directed the First Appellate
Court to record additional evidence and send back its findings. In that
process, the son of one of the attesting witnesses was examined as D.W.5,
and Exs.B25 to B27 were marked. After considering this further
evidence, the First Appellate Court again held that the Will was not
proved. Therefore, there are two consistent findings of the First Appellate
Court—one in the original appeal and the other after this Court’s
direction—that the Will has not been proved in the manner required by
law.
13. When this Second Appeal was filed, the defendants/appellants
admittedly had not complied with the mandatory requirements of
Sections 68 and 69 of the Indian Evidence Act, 1872 for proving the Will
relied upon by them. The substantial question of law framed at that stage
proceeded on that admitted non-compliance. However, later events have
materially changed the position. Pursuant to this Court’s orders, the First
Appellate Court recorded additional evidence. In view of the said
development, the second appeal originally framed/filed no longer
survives for consideration.
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14. The issue is whether the finding recorded after taking additional
evidence suffers from any legal error. Section 69 of the Evidence Act
applies where a document required by law to be attested has to be proved
when no attesting witness can be found. In such a case, it must be proved
that the attestation of atleast one attesting witness is in his handwriting
and that the signature of the executant is also in his handwriting. Here, it
is stated that one attesting witness, Murugaiyan, had died, and his son
was examined as D.W.5. Even so, there is no material to show that the
other attesting witness was dead or could not be found, and there is no
acceptable explanation for not examining him.
15. D.W.5 stated in chief that he had no knowledge of the execution of
the Will. He was then treated hostile and cross-examined by the
defendants. Even then, he could only identify his father’s signature in the
registration endorsement relating to identification of the executant before
the Sub-Registrar. He could not identify his father’s signature in the
attestation portion below the testator’s signature. On the other hand, he
identified the testator’s signature as his father’s. This evidence does not
satisfy Section 69 of the Evidence Act.
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16. The argument that identifying the signature in the registration
endorsement is, by itself, enough to satisfy Section 69 cannot be
accepted.
17. There is a clear difference between an attesting witness and an
identifying witness. An attesting witness is one who sees the
executant/testator sign (or receives acknowledgment of the signature) and
signs the document with the intention to attest (animo attestandi). Such
attestation must satisfy Section 63(c) of the Indian Succession Act.
18. An identifying witness before the Sub-Registrar has a different role.
He only identifies the executant who appears before the registering
authority. He need not witness execution, and need not know the contents
or circumstances of execution. Therefore, his signature in the registration
endorsement cannot be treated as attestation unless it is independently
proved that he signed as an attesting witness after witnessing execution or
receiving acknowledgment.
19. Section 69 requires proof that the handwriting is that of an attesting
witness. It does not speak of an identifying witness. Here, D.W.5’s
identification is only with reference to the signature in the identifying
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portion of the registration endorsement. Since he could not identify the
signature in the attestation portion, the requirement of Section 69 remains
unsatisfied.
20. The argument that registration of Ex.B20 raises a presumption of
due execution is misconceived. Registration may lend some assurance as
to genuineness, but in the case of a Will, registration does not dispense
with proof of due execution and attestation as required by Section 63 of
the Indian Succession Act read with Sections 68 and 69 of the Evidence
Act. Registration by itself is not proof of a Will.
21. In view of the concurrent findings, and since those findings have
been reaffirmed even after giving the appellants an opportunity to adduce
additional evidence, and there is no material to show perversity or
misapplication of settled law, no substantial question of law arises under
Section 100 CPC. The Second Appeal is therefore liable to be dismissed
at the admission stage.
22. Accordingly, S.A.No.1064 of 2013 is dismissed at the admission
stage. No costs. Connected CMPs, if any, are closed.
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23. The Civil Revision Petition filed by the defendants challenges an
order made in an execution application (police-aid/execution assistance)
in execution of the decree in O.S.No.213 of 2005. With dismissal of the
Second Appeal and the decree attaining finality, execution must follow.
The revision does not disclose any jurisdictional error, material
irregularity, or illegality warranting interference under Section 115 CPC.
In any event, it does not survive independently after dismissal of the
Second Appeal.
24. C.R.P.(NPD) No.1223 of 2018 is dismissed. Any interim order/stay
stands vacated. Connected miscellaneous petitions, if any, are closed.
There shall be no order as to costs.
25.02.2026
mfa
Index:Yes/No
Speaking Order /Non-speaking order
Neutral citation:Yes/No
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To
1.The Principal Sub Court
Tiruppur
2. The District Munsif cum
Judicial Magistrate at Palladam,
Coimbatore district.
3. The Section Officer,
V.R.Records, Madras High Court.
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DR. A.D. MARIA CLETE, J
mfa
25.02.2026
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