High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.07.2008 C O R A MTHE HONOURABLE MR.JUSTICE G.RAJASURIAA.S.No.305 of 1994andCross Objection No.40 of 20081. P.Shanmugham (Decd)2. P.Gopalsami3. P.Natarajan (Decd)4. Kaliammal5. Ponnusamy6. Varadarajan7. Vethanayagam8. N.Palaniammal9. Murugesan10.Selvaraj11.Venkatasalam12.Moorthy13.Samboornam14.Rani.. Appellants in A.S.No.305 of 1994 and Respondents in Cross Objection No.40 of 2008.Appellants 4 to 7 brought onrecord as L.Rs of the deceasedfirst appellant vide order ofCourt dated 4.4.2007 made inC.M.P.Nos.668 to 673 of 2007.Appellants 8 to 14 brought onrecord as L.Rs of the deceasedthird appellant vide order ofCourt dated 4.4.2007 made inC.M.P.Nos.668 to 673 of 2007. Vs. https://hcservices.ecourts.gov.in/hcservices/

1. Chinnathayee2. Kaveriammal3. Rajalakshmi4. Sankaran Nadar5. Subramanian6. Selvaraj7. Ponnusami8. Subbulakshmi.. Respondents 1 to 7 in A.S.No.305 of 1994 & Cross Objectors 1 to 7 in Cross Objection No.40 of 2008. 8th respondent given up in the appeal Appeal and Cross Objection filed as against the judgment anddecree dated 10.12.1993 passed in O.S.No.360 of 1990 on the file ofthe learned Subordinate Judge, Tiruppur.For Appellants: Mr.A.K.KumarasamyFor respondents: Mr.T.M.Hariharan1 to 7 R-8 given upJUDGMENT This appeal is focussed at the instance of the defendants asagainst the part of the judgment and decree dated 10.12.1993 passedby the learned Subordinate Judge, Tiruppur in O.S.No.360 of 1990,which was filed by the plaintiffs for partition and for otherincidental reliefs. Whereas the plaintiffs filed Cross Objectionchallenging the finding of the trial Court upholding the validity ofthe Will in respect of the "B" scheduled property. For conveniencesake, the parties are referred to here under according to theirlitigative status before the trial Court.2. Tersely and briefly, the case of the plaintiffs as stoodexposited from the plaint could be portrayed thus:The immovable property described in the "A" Schedule of theplaint was purchased by the deceased Palaniappa Nadar as per Exs.A1,A2, A3 and A6 from and out of his own earnings without having anyancestral nucleus. The said Palaniappa Nadar had three sons andfive daughters. The plaintiffs 1 to 3 and D4 and one Kamalam are https://hcservices.ecourts.gov.in/hcservices/ the daughters and the defendants 1 to 3 are the sons. The saidPalaniappa Nadar during his life time enjoyed the "A" Scheduledproperty as his self-acquired property and died leaving behind hissons and daughters to inherit his properties. The "B" Scheduledproperties belonged to the mother, the wife of Palaniappa Nadar andshe died leaving behind the same legal heirs as referred to supra toinherit her properties. The plaintiff No.4 is the husband of thedeceased Kamalam, who was one of the daughters of Palaniappa Nadarand plaintiffs 5 to 7 are her children. However, the defendants hadset up a plea as though, the mother of the plaintiffs executed aWill in favour of the minor children of her sons and she could nothave executed such a Will as she was not in a sound disposing stateof mind, in addition to not enjoying good health. Accordingly,they prayed for partition of the "A" Scheduled and "B" Scheduledproperties into eight equal shares and allot four shares in favourof the plaintiffs.3. Per contra, denying and refuting, challenging and impugning,the allegations/averments in the plaint, D3 filed the writtenstatement, which was adopted by D1 and D2, the warp and woof of it,would run thus:The "A" Scheduled properties did not belong exclusively toPalaniappa Nadar, but to the joint family comprised of PalaniappaNadar and his three sons, as those properties were enjoyed as such.After the death of Palaniappa Nadar, his sons D1 to D3 becameentitled to those properties and they orally partitioned them amongthemselves. The plaintiffs were not in joint possession of thesuit property along with D1 to D3. For plaintiff No.3, the deceasedKanniammal, wife of Palaniappa Nadar bequeathed an extent of 1.04acres in Vallipuram Village as Seer Varisai, though it was theproperty was given in the name of the third plaintiff's husband.The other daughters of Palaniappa Nadar and Kanniammal were alsogiven Seer Varisai. In fact, some of the items of immovableproperties in the "A" Scheduled property did not belong toPalaniappa Nadar and his family. The "B" Scheduled propertieshappened to be the absolute property of the said Kanniammal. Sheduring her life time executed a Will dated 19.01.1984 in favour ofher three grand sons, so to say, the respective sons of P.Shanmugam,P.Natarajan and P.Gopalsami. She died on 14.07.1984 and thosebeneficiaries under the Will were not added as parties.Accordingly, they prayed for the dismissal of the suit.4. The trial court framed the relevant issues. During trial,on the side of the plaintiffs PW1 was examined and Exs.A1 and Ex.A7were marked. On the side of the defendants D.Ws.1 to 3 wereexamined and Exs.B1 and B2 were marked. Ultimately, the trialCourt decreed the suit ordering partition as prayed for in theplaint relating to the "A" Scheduled properties and dismissed the https://hcservices.ecourts.gov.in/hcservices/ suit relating to the "B" Scheduled properties upholding the Willexecuted by Kanniammal.5. Being aggrieved by and dissatisfied with the judgment anddecree of the trial Court in ordering partition of the "A" Scheduleproperties, the defendants 1 to 3 have filed this appeal on thefollowing grounds among others.(i) The judgment and decree of the trial Court inordering partition of the "A" Scheduled properties isagainst law, weight of evidence and all probabilities ofthe case. (ii) The trial Court failed to hold that the deceasedPalaniappa Nadar had two acres of ancestral property,which yielded sufficient income to purchase the "A"Scheduled properties.(iii) Ignoring the legal presumption that the "A"Scheduled properties are the joint properties of the co-parcenery comprised of the deceased Palaniappa Nadar andhis three sons, the trial Court simply ordered forpartition as though the "A" Scheduled properties were theself-acquired properties of the deceased Palaniappa Nadar.(iv) The trial Court failed to note that Exs.A1 toA3 and A6 are only xerox copies of the documents, whichare inadmissible.Accordingly, they prayed for setting aside that part of the judgmentand decree of the trial Court in ordering partition of the "A"Scheduled properties.6. The plaintiffs 1 to 7 filed Cross Objection as under:- (i) The judgment and decree of the trial Courtwas wrong in holding that Ex.B2, the purported Will wasexecuted by Kanniammal.(ii) The Will was not proved in the way knownto law. Kanniammal was suffering from high bloodpressure; she was nervous and trembling and she could nothave voluntarily executed the alleged Will. Ex.B2 Will wasnot produced till the time of trial.Accordingly, they prayed for setting aside that much portion of thejudgment and decree of the trial Court in upholding the validity ofthe Will and in rejecting the prayer to order partition of the "B"Scheduled properties. https://hcservices.ecourts.gov.in/hcservices/

7. The points for consideration are as to:-(a) Whether the A Scheduled properties of the plaintare the self-acquired properties of deceased PalaniappaNadar or the joint family property of the deceasedPalaniappa Nadar and his three sons, viz.,D1 to D3.(b) Whether Ex.B2 the Will was executed byKanniammal and whether it was proved in the way known tolaw?(c) Whether there is any infirmity in the judgmentand decree of the trial Court ?8. Point No.1:Learned counsel for the plaintiffs, by placing reliance onExs.A1 dated 26.09.1928, Ex.A2 dated 22.08.1945, Ex.A3 dated03.05.1948 and Ex.A6 dated 18.11.1948, which are the sale deeds infavour of said Palaniappa Nadar, would develop his arguments thatthe purchases under those sale deeds were from and out of theearnings of Palaniappa Nadar as he had no joint family incomeyielding nucleus.9. Learned counsel for the defendants, by drawing theattention of this Court to the deposition of DW1, would advance hisarguments to the effect that during the year 1928, Palaniappa Nadarfather's brother purchased 2 acres of land in Palaniappa Nadar'sname so as to enable him to get Maniam's post as in those days tobecome a Maniam, one should have immovable property. Absolutely,there is no evidence to indicate that the Palaniappa Nadar's youngerbrother purchased the said property in the name of Palaniappa Nadar.The learned counsel for the plaintiffs would correctly andconvincingly argue that even assuming without admitting thatPalaniappa Nadar's father's younger brother purchased such propertyin the name of Palaniappa Nadar, yet it would constitute only a giftor donation given by him in favour of Palaniappa Nadar, which cannotbe taken as an ancestral nucleus and that there is also nothing toprove that from out of such property, the other properties werepurchased. It is therefore, clear that the contention of DW1, ishis ipse dixit. There is no modicum or exiguous extent of evidenceto highlight that the suit properties were purchased from out of thejoint earnings of D1 to D3, the sons of Palaniappa Nadar. Hence,in this view of the matter, it is crystal clear that thoseproperties described in the "A" Schedule properties were the self-acquired properties of Palaniappa Nadar relating to which theplaintiffs and defendants are entitled to shares and the trial Courtcorrectly adjudged the same. The relationship among the parties arenot in dispute. Accordingly, the trial Court's judgment relating to"A" schedule of the suit property is confirmed. Therefore, Point https://hcservices.ecourts.gov.in/hcservices/ No.1 is decided in favour of the plaintiffs and as against thecontesting defendants 1 to 3. Point No.2:10. The plaintiffs are challenging the Will Ex.B2 executed bythe mother on the ground that she was not in a sound state of mindas on the date of emergence of Ex.B2. The learned counsel for thecross appellants viz., the plaintiffs, would contend that there wereas many as five attesting witnesses to Ex.B2, which itself paves theway for suspicion; out of those attesting witnesses DW2 Rathinasamyalone was examined along with DW3 Kannan, the alleged scribe of theWill and the depositions of D.Ws.2 and 3 are fraught withinconsistencies and self-contradictory statements. He would alsocite the following decisions:1. 1994 (5) SCC 135 (Bhagwan Kaur vs. Kartar Kaurand others2. 2003 (12) SCC 35 (Bhagat Ram and another vs.Suresh and others)3. 2006 (13) SCC 449 (B.Venkatamuni vs. C.J.AyodhyaRam Singh and others)11.A perusal of the aforesaid judgments would cumulativelyreveal that the propounder of a Will has to prove the due executionof the Will by the testator as per Section 63 (c) of the IndianSuccession Act r/w Sections 67 and 68 of the Indian Evidence Act.There could be no quarrel over the proposition that a Will has to beproved strictly in accordance with those aforesaid provisions oflaw. 12. It is obvious and axiomatic that at least one of theattesting witnesses to the Will should be examined. Here DW2 one ofthe attesting witnesses was examined and he categorically deposedbefore the Court that he had seen Kanniammal, the testatrix affixingher thumb impression in the Will after understanding the contents ofit and that the other witnesses also signed in his presence afterwitnessing Kanniammal putting her left thumb impression. However,the learned counsel for the Cross Objectors/plaintiffs by drawingthe attention of this Court to the versions given by the witnessesduring cross examination would develop his argument that in onebreadth DW2 would state that the Will was signed at the SubRegistrar's Office and in another breadth, he would state that hedid not visit the Sub Registrar's office at all; he would also statethat the Will was written on embossed stamp paper even though theWill was written on plain papers. Similarly, he would highlightthat DW3 the scribe also committed the same type of contradictionsas he would in one breadth depose that the testator and theattesting witnesses, all went to Sub Registrar's Office and in https://hcservices.ecourts.gov.in/hcservices/ another breadth his claim was that he did not go to the SubRegistrar's office. No doubt, there are certain contradictions ashighlighted by the learned counsel for the plaintiffs in thedepositions of D.Ws.2 and 3. 13. Learned counsel for the defendants 1 to 3 would submitthat due allowances should be given for lapse of memory on the partof the witnesses and that too, due to time lag between the emergenceof Ex.B2 and the date of deposition before the Court. Ex.B2 theWill, emerged on 19.01.1984 whereas D.Ws.2 and 3 were examinedbefore the Court on 10.11.1993, so to say, almost after 9 years. Atthis context, my mind is redolent with the Hon'ble Apex Court'sdecision reported in 2006 (2) LW 658 (Pentakota Satyanarayana andothers vs. Pentakota Seetharatnam and others). An excerpt from itwould run thus:"31. DW6 stated that D1 brought the draft Willand asked him to scribe the same. This is nowherecontradicted by DW5. DW5 does not say that D1(testator) did not bring a draft Will. It is quitenatural for the testator to have a first draft Willin the pocket when he goes to a document writer. DW5was asked to attest. DW6 also speaks about theexecution and attestation. The trial Court has mademuch about the draft Will aspect. This is hardly asuspicious circumstance. DW6 says that 4 malepersons accompanied D1. This is hardly a suspiciouscircumstance. DW5 also states that there was anotherperson whom he would not identify. The depositionwas given in 1997(i.e 17 years after the registrationof Will) and the Courts below ought not to have madea mountain out of a molehill and on that basis rejecta duly executed registered Will." (emphasis supplied)A mere perusal of the said decision would highlight the fact thatwhen there is lapse of long number of years between the date ofemergence of a document and the date of deposition relating to theexecution of the document, due allowances has to be given. In suchmatters, the witnesses contradictory answers relating to the factsas to who came first for signing and who came next for signing andall should not be taken as material and significant. 14. In this case, nine years period had elapsed before thewitnesses D.Ws.2 and 3 deposed before the Court, from the date ofemergence of Ex.B2 Will. During cross examination, in suchcircumstances, the witnesses are bound to commit some errors whilemeticulously furnishing some details. It has to be seen as to https://hcservices.ecourts.gov.in/hcservices/ whether relating to the main point, those witnesses stuck to theirguns or not. Here, D.W2 and DW3 without any prevarication candidlyand categorically deposed that they did see the testator affixingher thumb impression and also the witnesses signing.15. The very decision cited supra reported in 2006 (2) LW 658(Pentakota Satyanarayana and others vs. Pentakota Seetharatnam andothers)would also highlight the following points:"25. A perusal of Ex.B9 (in original) wouldshow that the signatures of the Registering Officerand of the identifying witnesses affixed to theregistration endorsement were, in our opinion,sufficient attestation within the meaning of the Act.The endorsement by the Sub-Registrar that theexecutant has acknowledged before him execution didalso amount to attestation. In the original documentthe executants signature was taken by the sub-Registrar. The signature and thumb impression of theidentifying witnesses were also taken in thedocument. After all this, the sub-registrar signedthe deed. Unlike other documents the Will speaksfrom the death of the testator and so, when it ispropounded or produced before a Court, the testatorwho has already departed the world cannot say whetherit is his Will or not and this aspect naturallyintroduces an element of solemnity in the decision ofthe question as to whether the document propounded isproved to be the last Will and the testament ofdeparted testator.26.............The document also contains the signatures of theattesting witnesses and the scribe. Such particularsare required to be endorsed by the Registrar alongwith his signature and date of document. Apresumption by a reference to Section 114 of theEvidence Act shall arise to the effect thatparticulars contained in the endorsement ofregistration were regularly and duly performed andare correctly recorded. In our opinion, the burdenof proof to prove the Will has been duly andsatisfactorily discharged by the appellants."Here Ex.B2 is the registered Will and as such it is having addedsanctity and additional evidentiary value relating to itsgenuineness coupled with the other evidence adduced before the trialCourt.16. The learned counsel for the plaintiffs would contend that https://hcservices.ecourts.gov.in/hcservices/ DW2 would depose that the Will was written as dictated by theAdvocate to DW3, who scribed the Will. Whereas DW3 in hisdeposition would depose as though Kanniammal gave the versions,which he wrote. In my opinion, those versions of D.W.2 and D.W3should not be taken as though they gave conflicting answers. It isbut natural that if a lady goes to her Advocate for getting the Willprepared and the scribe also is present, naturally, the Advocatewould help the testator with legal clauses to be incorporated onascertaining the wishes of his client, the testator and the scribewould be drafting it. While narrating as to what happened among thethree, naturally there would be lack of cogency in her narrationand it does not mean that the Court has to artificially analysethose evidence with draconian or suspicious eye. Keeping theabove principle, it has to be seen as to whether, the testator, herAdvocate and the scribe were present along with the attestingwitnesses. Here, in this case, it has been amply established byD.Ws.2 and 3 that those persons were all present in one and thesame place and at that time, Ex.B2 Will was prepared, whereuponKanniammal affixed her left thumb impression following her theattesting witnesses also signed and the scribe also put hissignature. In such a case, I could see no infirmity in the evidenceadduced by D.W.2 and D.W3.17. The learned counsel for the plaintiffs would point outthat D.W2 himself had stated that Kanniammal did not know how tosign; she had no shivering and that she voluntarily put her thumbimpression; whereas DW1 in his deposition would aver to the effectthat long time anterior to the execution of Ex.B2 Will, Kanniammalused to sign and owing to her old age, her hands were shaking andhence she affixed her thumb impression. Once again, I would holdthat evidence of this nature, should not be analysed artificiallyout of context.18. To the risk of repetition, without being tautologous, Iwould like to highlight that nine years after the emergence of theWill, the witnesses deposed as to what was the ability of thetestator and that too, a lady testator regarding her ability tosign, etc. DW1 happened to be the son and he might be in a positionto know about his mother's capacity to sign etc. Whereas DW2 cannotbe expected to be having that much knowledge about her ability tosign earlier to her executing the Will. As such, a rationalapproach is required in analysing the evidence of witnesses and inthis factual matrix a draconian approach in analysing the evidenceof the attesting witnesses would tantamount to throwing the babyalong with the bath water.19. In my considered opinion, there is also one otherimportant fact, which should be taken into account while analysing https://hcservices.ecourts.gov.in/hcservices/ the evidence relating to the genuineness of the Will. It is a triteproposition of law, the witnesses might lie but the circumstanceswould not lie and it is also a well settled common or gardenprinciple that preponderance of probabilities would govern theadjudication in civil cases. The whole kit and caboodle of factsand figures placed before the trial Court would tend anyone tounderstand that the daughters of Kanniammal got married and livingseparately and the sons also similarly got married and livingseparately and the mother was living with D3, one of her sons andit is but natural on the part of the mother to execute the Willrelating to her property in favour of her sons' sons. The nearnessand dependency of the beneficiaries could rightly be understood tobe the actuating and accentuating factor for a person to executethe Will in favour of them. Here she was under the care and custodyof her sons and in such a case, it was no wonder that she hadexecuted such a Will so as to benefit her sons' sons rather than herdaughter's children.20. The learned counsel for the defendants 1 to 3 in anacceptable manner would put forth the argument that even though inthe written statement, the defendants without minching words clearlyand categorically highlighted that the beneficiaries under the Willhappened to be the sons of D1 to D3, nonetheless, the plaintiffs hadnot even raised their little finger to implead those beneficiariesas defendants in the suit and that no adjudication as against suchbeneficiaries could be given. The plaintiffs despite they havingbeen informed about the legal plea, they have not chosen to impleadthe beneficiaries also as parties under the Will. The fact remainsthat the plaintiffs themselves did choose to refer to the Will as acooked up document and in such a case, they could have taken stepsto implead the beneficiaries though not at least at the time offiling the suit but at least after perusing the written statementfiled in the case. 21. Hence, I am of the considered opinion that the trial Courtwas justified in upholding the validity of the Will. In view of theratiocination set out supra, I could see no infirmity in thejudgment and decree of the trial Court. Accordingly, the appeal aswell as the Cross Objection fails and the same are dismissed and thejudgment and decree of the trial Court is confirmed. However, thereshall be no order as to costs.Sd/-Deputy. Registrar./true copy/Sub Asst. Registrar.vj2 https://hcservices.ecourts.gov.in/hcservices/ ToThe Subordinate Judge, Tiruppurcopy to The Section OfficerVR Section,High Court, Madras.1 cc to Mr.A.K. Kumarasamy, Advocate, SR. 394621 cc to Mr.T.m. HAriharan, Advocate, Sr 39564A.S.No.305 of 1994 &Cross Objection No.40 of 2008VSV (CO)kk 20/8