Samiyappa Gounder v. Palanisamy & Ors.

not known for the last 25 years, she is decided to be dead under law;Valliammal, the widow of Vayyapuri also died during May 1989. Theplaintiffs, who are the son and daughters of Palanathal are entitledto Vayyapuri Gounder's 1/4th share in the suit properties.(ii) The suit properties belong to the plaintiffs and thedefendants in common and they are in joint possession and enjoymentof the properties; the plaintiffs are entitled to common 1/4th shareand the defendants 1 and 2 are entitled to 1/8th share each anddefendants 3 and 4 each are entitled to 1/4th share in common. Sincecommon possession and enjoyment in the suit land had becomeinconvenient and troublesome, with an interest to have the propertydivided by metes and bounds, the plaintiffs approached the defendantspersonally for an amicable partition; since the defendants had beenevading the same under some or other pretext, the plaintiffs caused anotice dated 22.11.1989 to the defendants setting forth the facts anddemanding partition; even after the receipt of the notice, thedefendants 2, 3 and 4 neither replied nor had come forward to meetthe demand and the 1st defendant had returned the notice. Having noother alternative, the plaintiffs filed an appeal in O.S.No.11 of1990 seeking partition of their 1/4th share for separate possession. 3.The 1st defendant filed written statement denying the plaintaverments as false and frivolous. It is his submission that theplaintiffs are not the children of Palanathal, the daughter ofValliammal and to their knowledge, Palanathal is still living withher second husband and several people in the village see her quiteoften and it is false to say that her whereabouts is not known forthe past 25 years. Further, Vayyapuri Gounder, the husband ofValliammal died more than 40 years back and as such, as per law,Palanathal, the daughter of Vayyapuri has no right in the property;while so, the plaintiffs claiming as heirs of Palanathal cannot claimany right in the suit property. 3a.It is further stated in the written statement that thedeceased Vayyapuri Gounder was entitled to share only in S.F.No.16/2,19, 29/2 and 54/3; Valliammal, as the legal heir of VayyapuriGounder was cultivating in the said land for some time and thereafterleased out the same to one Rangasami Gounder, the father of the 1stdefendant. According to the 1st defendant, Valliammal, wife ofVayyapuri Gounder before her death had executed a Will on 01.02.1988,bequeathing her right in the suit properties in his favour;therefore, it is the case of the 1st defendant that he alone is inpossession and enjoyment of the properties and the plaintiffs neverenjoyed the properties at any time in any way. It is the furthercase of the 1st defendant that in view of rapid industrialisation, thevalue of the properties in the suburbs of Tirupur Town like the suitproperties have gone up and they are fetching good prices and onlywith a view to give trouble to the defendants and to extort some https://hcservices.ecourts.gov.in/hcservices/ money or some extent of the land, the plaintiffs have preferred thesuit; therefore, they prayed for dismissal of the suit.4.The plaintiffs in their reply to the written statement hasstated that the denial of parentage of the plaintiffs and the set upof a Will by Valliammal in favour of the 1st defendant are allinventions of the 1st defendant for the purpose of evading the rightsof the plaintiffs. He has further stated that the 1st defendant, whohad evaded the notice has now come forward with the allegation ofWill in his favour only to get over service of notice to the 2nddefendant. The plaintiffs submit that they are the son and daughterof Palanathal, the daughter of Valliammal. It is their case that thealleged Will should be a bogus and forged one, since there is no needfor Valliammal to bequeath the properties by way of Will, that too infavour of the 1st defendant and on the other hand, if the thumbimpression in the Will is that of Valliammal, it could have beenobtained by influence or by coercion; therefore, in any event, thealleged Will is not valid and the defendants cannot claim any rightby such Will. 5.The Trial Court, on consideration of the entire facts andcircumstances of the case and on an analysis of the material records,decreed the suit in favour of the plaintiffs that they are entitledto 1/4th share in the suit property. Aggrieved by the same, the 1stdefendant has come on appeal before this Court.6.Learned counsel for the appellant has contended that theTrial Court has failed to appreciate that the respondents have notproved that they are the legal heirs of Palanathal and they have alsonot proved the factum of possession of the suit properties. It ishis further submission that the Trial Court has erred in holding thatthe appellant has not proved that Palanathal is living separately,whereas the onus to prove that she is not heard for the past 25 yearsis on the respondents. He further contended that the Trial Courterred in disbelieving Ex.B1-Will, despite the same being signed byValliammal and attested by D.Ws.2 and 3 and it has also erred inrelying upon Ex.A3, which is not a conclusive proof to show that therespondents are the children of Palanathal. He also contended thatthe Trial Court has erred that in the event of death of Palanathal,her mother Valliammal is the owner of the suit property and hence thetransfer of the suit property in favour of the appellant is correct.6a.In support of his contentions, learned counsel for theappellant has relied on the following judgments:(i)In XV MLJ 517 in the case of K.Krishnamachariar vs.Veeravalli Krishnamacharichar, this Court has held as under:“... Then what is the documentary evidence? Theplaintiff produced a document which is Exhibit C in thecase, which, he says, is the horoscope of the deceased.That is spoken to by his 9th witness. An objection was https://hcservices.ecourts.gov.in/hcservices/ taken to the evidence of this witness with reference to thehoroscope on the ground that the witness was not the writerand that he had no personal knowledge of its correctness.The learned judge does not say how he dealt with theobjection, but apparently the document was admitted inevidence. The document states that the deceased was bornin November 1890. The will being April 1909 is not called,and apparently all the witness says with reference to thehoroscope is that the deceased man's natural father gavethe horoscope to the deceased man's adoptive father and bysome means or other, which are not stated, it got in to thepossession of the witness. The learned judge seems tothink that this horoscope as a piece of evidence isworthless, and I think so too. ...”(ii)In AIR 1978 Madras 42 in the case of The Secretary toGovernment, Home Department and another vs. T.V.Hari Rao, this Courthas held as under:“12.Even original horoscopes, though may beadmissible under S.32(5) of the Evidence Act, theirevidentiary value is very little, See Bharat Basi vs.Gopinath, AIR 1941 All 385; V.M.Namboothiri vs.K.K.Kuruvila, AIR 1957 Kerala 103 and Parasram vs.Dayaldas, AIR 1965 Him Pra 32. In the present case, thereis not even the original horoscope but only copies thereof.Even these copies have not been really connected with theplaintiff. Therefore, it must be held that there is noevidence that the plaintiff was born on 14.02.1923 as isnow claimed.”(iii)This Court in yet another judgment reported in 2001(3) L.W.492 in the case of Subbarayan vs. Murugesan and 3 others hasheld as under:“4.On the basis of these pleadings, issues wereframed. On behalf of the plaintiff, P.W.1, the plaintiff,P.W.2 Kuppammal and P.W.3 Kanna Pillai were examined andExs.A-1 to A-17 were marked. On the side of thedefendants, the second defendant was examined as D.W.1 andthe first defendant was examined as D.W.1 and the firstdefandant was examined as D.W.2 and Exs.B-1 to B-15 weremarked. 5.On considering the materials on record, the trialcourt concluded that the deed Ex.A-17 exeucted by NatesaPillai in favour of Kuppammal is a Will and since it wasnot proved that the said Natesa Pillai died, Kuppammalwould not be entitled to get the right of selling theproperty and consequently, the plaintiff's reliefs soughtfor in the suit cannot be granted. The lower appellate https://hcservices.ecourts.gov.in/hcservices/ Court also while confirming the judgment and decree passedby the trial Court would hold that there is no evidence toshow that Natesa Pillai, who was the owner of the suitproperty, died and therefore, the sale deed executed notonly by P.W.2 in favour of the plaintiff but also by P.W.2in favour of the plaintiff but also the other sale deedsexecuted by other sisters are no valid. ... “(iv)In 97 L.W. 313 in the case of R.Gopala Pathar vs.N.Jayalakshmi Ammal and others, this Court has held as under:“It is thus manifestly clear that though a presumptionregarding death could be generally drawn if a person hadnot been heard for seven years by those who would haveordinarily heard of him, had he been alive, yet, there isno presumption whatever regarding the precise date ofdeath. The presumption under S.108 of the Indian EvidenceAct could be raised to extend generally to the fact ofdeath at the expiration of seven years and not to the dateof death at any particular period, for, as pointed outearlier, there is no presumption that death took place atthe end of seven years or at any particular time withinthat period of seven years.”(v)In yet another judgment of this court reported in 2001 (3)CTC 731 in the case of The Director, Department of Animal Husbandry,Madras and two others vs. A.Kaliyamurthy, it is held as under:“11.In my view, the date of birth given in thehoroscope ought not to have been accepted. It is wellestablished that the horoscope by itself has very littleevidential value. In 1981 the plaintiff's departmentpeople called for explanation from the plaintiff withregard to his date of birth. This was followed by aninspection of the Service Register of the plaintiff inJune, 1984. After inspecting the Service Register, on12.06.1984 the plaintiff wrote to the Assistant Director ofthe Department that his date of birth has been corrected as25.10.1924. According to the plaintiff, the figure 7 hasbeen corrected as 4. A perusal of the Service Registermarked as Ex.B-1 shows his date of birth as 25.10.1924, inthe Service Roll, and in the Service Book, there is somecorrection made with regard to the year of birth. Thoughone of the witnesses on the side of the defendants has saidthat it looked like 6 corrected as 4, still by itself itcannot mean that the plaintiff's date of birth was25.10.1927. The person, who spoke to to the correctionapparently was not responsible for any such correction. Ithas to be noted that if the plaintiff's date of birth wereto be taken as 1927, he would not have been able to joinservice in 1943 since he would not have completed 18 years https://hcservices.ecourts.gov.in/hcservices/ of age. The Courts below have been persuaded to hold infavour of the plaintiff on the basis of this allegedcorrection in his Service Book. The fact remains that theplaintiff's services were regularised in 1972. Rule 49(c)of the Rules provides for a five year period to have therecords relating to a person's date of birth corrected.Apparently, the plaintiff had not approached theauthorities within the stipulated time.” (vi)The Supreme Court in 2002 (1) CTC 240 in the case ofDarshan Singh and others vs. Gujjar Singh (dead) by Lrs. and Ors.,has held as under:“5.In Sri Vidya Mandir Education Society (Regd.) vs.Malleswaram Sangeetha Sabha and others, 1995 Supp. 1 SCC27, this court considred provisions of Sections 107 and 108of the Evidence Act and after noticing the decision of thePrivy Council in Lal Chand Marwari vs. Machant Ramrup Girand another, AIR 1926 PC 9 held that there is nopresumption of exact time of death under Section 108 of theEvidence Act and the date of death has to be established onevidence by person who claims a right for establishment ofwhich that fact is essential. The case in hand asplaintiff claimed succession to the estate of Jagjit Singh,and therefore, the burden was on him to prove the date ofdeath. There is neither any pleading nor an averment bythe plaintiff-respondent regarding date of death of JagjitSingh. The view of the High Court that as Jagjit Singh wasnot heard for more than 7 years and, therefore, the date offiling of the present suit would be considered as date ofdeath of Jagjit Singh is contrary to above provisions oflaw.6.In view of the settled position of law, thesuccession of plaintiff-Gujar Singh to the estate of JagjitSingh would open only on the death of Jagjit Singh. Asplaintiff-Gujjar Singh could not prove the date of death ofJagjit Singh, therefore, his succession to his estate didnot open to on the date of filing of the suit. We,therefore, hold that the above findings of the appellatecourts are not sustainable in law.”(vii)In yet another judgment of the Supreme Court reportedin (2005) 3 SCC 702 in the case of State of Punjab vs. MohinderSingh, it has been held as under:“11.Horoscope is a very weak piece of material toprove age of a person. In most cases, the maker of it maynot be available to prove that it was made immediatelyafter the birth. A heavy onus lies on the person who wants https://hcservices.ecourts.gov.in/hcservices/ to press it into service to prove its authenticity. Infact, a horoscope to be treated an evidence in terms ofSection 32 clause (5) must be proved to have been made by aperson having special means of knowledge as regardsauthenticity held to be inadmissible in proof of age.”(viii)In 2007 (2) CTC 553 in the case of Govindarasami Naiduvs. Shanmuga Nattar and another, this Court has held as under:“The age of a person, in an Election Petition has tobe determined not only on the basis of the materialsplaced on records but also upon taking into considerationthe circumstances, attending thereto. The initial burdento prove the allegations made in the Election Petitionalthough was upon the election petitioner but forproviding the facts which were within the specialknowledge of the respondent, but burden was upon him interms of Section 106 of the Evidence Act. It is alsotrite that when both parties have adduced evidence, thequestion of onus of proof becomes academic. (See Union ofIndia and others vs. Sugauli Sugar Works (P) Limited, 1976(3) SCC 32 para 14 and M/s.Cox and Kings (Agents) Limitedvs. Their Workmen and others, AIR 1977 SC 1666 para 36.Furthermore, an admission on the part of a party to thelis shall be binding on him and in any even a presumptionmust be made that the same is taken to be established.” 7.Learned counsel for the respondents has submitted that theplaintiffs are the children of Palanathal, the daughter of Vayyapuri.He contended that the Will ought to have been created by the 1stdefendant and that it is a forged one. According to the learnedcounsel, the judgment of the Court below is in accordance with lawand they same does not warrant any interference.7a.Learned counsel for the respondents to support hiscontentions has relied on the following decisions:(i)The Supreme Court in AIR 1959 SC 443 in the case ofH.Venkatachala Iyengar vs. B.N.Thimmajamma and others has held asunder:“20.There may, however, be cases in which theexecution of the Will may be surrounded by suspiciouscircumstances. The alleged signature of the testator maybe very shaky and doubtful and evidence in support of thepropounder's case that the signature in question is thesignature of the testator may not remove the doubt createdby the appearance of the signature; the condition of thetestator's mind may appear to be very feeble anddebilitated; and evidence adduced may not succeed inremoving the legitimate doubt as to the mental capacity ofthe testator; the dispositions made in the Will may appearto be unnatural, improbable or unfair in the light of https://hcservices.ecourts.gov.in/hcservices/ relevant circumstances; or, the will may otherwiseindicate that the said dispositions may not be the resultof the testator's free will and mind. In such cases theCourt would naturally expect that all legitimatesuspicions should be completely removed before thedocument is accepted as the last will of the testator. Thepresence of such suspicious circumstances naturally tendsto make the initial onus very heavy; and, unless it issatisfactorily discharged. Courts would be reluctant totreat the document as the last will of the testator. It istrue that, if a caveat is filed alleging the exercise ofundue influence, fraud or coercion in respect of theexecution of the will propounded, such pleas may have tobe proved by the caveators; but, even without such pleascircumstances may raise a doubt as to whether the testatorwas acting of his own free will in executing the will, andin such circumstances, it would be a part of the initialonus to remove any such legitimate doubts in the matter.21.Apart from the suspicious circumstances to whichwe have just referred in some cases the wills propoundeddisclose another infirmity. Propounders themselves take aprominent part in the execution of the wills which conferon them substantial benefits. If it is shown that thepropounder has taken a prominent part in the execution ofthe will and has received substantial benefit under it,that itself is generally treated as a suspiciouscircumstance attending the execution of the will and thepropounder is require to remove the said suspicion byclear and satisfactory evidence. It is in connection withwills that present such suspicious circumstances thatdecisions of English Courts often mention the test of thesatisfaction of judicial conscience. It may be that thereference to judicial conscience in this connection is aheritage from similar observations made by ecclesiasticalCourts in England when they exercised jurisdiction withreference to wills; but any objection to the use of theword 'conscience' in this context would, in our opinion,be purely technical and academic, if not pendantic. Thetest merely emphasizes that, in determining the questionas to whether an instrument produced before the Court isthe last will of the testator, the Court is deciding asolemn question and it must be fully satisfied that it hadbeen validly executed by the testator who is no longeralive.”(ii)This Court in 1978 MLJ 460 in the case of The Secretary toGovernment, Home Department and another vs. T.V. Hari Rao has held asunder: https://hcservices.ecourts.gov.in/hcservices/ “6.... Statements contained in a pedigree orhoroscope would certainly come under section 32(5)provided the other conditions are satisifed. A statementin a horoscope need not necessarily be ore made at aboutthe time of the birth of the child to attact section 32(5). Even if it is made subsequently it would beadmissible provided it had been made before the questionin dispute was raised and the other conditions mentionedearlier are satisfied. Therefore, on the ground that thehoroscopes, Exhibits A-1 and A-2 had not been written atabout the time of the birth of the child it cannot be saitthat they are not admissible in evidence under section 32(5). If the said horoscopes constituted a statement ascontemplated under section 32(5), then undoubtedly theywould be admissible in evidence.”(iii)In 1997 (3) L.W. 673 in the case of Govindan Chettiar(died) vs. Akilandam alias Seethalakshmi and 24 others, this Courthas held as under:“The only asset belonging to the deceased is allegedto have been bequeathed to the appellant, and he has alsotaken active part in the execution of the Will. In caseswhere the legatee has taken active part in the execution ofthe Will and the entire asset is also taken by him, betterevidence is required regarding execution of the Will. ...”(iv)In yet another decision reported in AIR 2005 SC 1868 in thecase of State of Punjab vs. Mohinder Singh, the Supreme Court hasheld as under:“11.Horoscope is a very weak piece of material toprove age of a person. In most cases, the maker of it maynot be available to prove that it was made immediatelyafter the birth. A heavy onus lies on the person who wantsto press it into service to prove its authenticity. Infact, a horoscope to be treated as evidence in terms ofSection 32, Clause (5) must be proved to have been made bya person having special means of knowledge as regardsauthenticity of a date, time, etc. mentioned therein. Inthat context horoscopes have been held to be inadmissiblein proof of age. ...12.On the contrary, the statement contained in theadmission register of he school as to the age of anindividual on information supplied to the schoolauthorities by the father, guardian or a close relative ismore authentic evidence under Section 32, Clause (5) unlessit is established by unimpeachable contrary material toshow that it is inherently improbable. The time of one'sbirth relates to the commencement of one's relationship by https://hcservices.ecourts.gov.in/hcservices/ blood and a statement therefore of one's age made by aperson having special means of knowledge, relates to theexistence of such relationship as that referred to inSection 32 Clause (5). 14.Therefore, the school records have more probativevalue than a horoscope. Where no other material isavailable, the horoscope may be considered but subject toits authenticity being established. These aspects were notconsidered by the first appellate Court and the High Court.“8.I have carefully considered the submissions made by thelearned counsel on either side and perused the material documents onrecord.9.From the pleadings, it is seen that originally the suitproperty was purchased by the grandfather of the defendants 1 and 2,namely, Subbae Gounder and the father of defendants 3 and 4, namely,Pazhanisamy Gounder in common; each were entitled to 1/2 share in thesuit property. It is an admitted fact that Subbae Gounder had twosons namely, Rangae Gounder and Vayyapuri Gounder, defendants 1 and 2are the sons of the Rangae Gounder and Vayyapuri Gounder died,leaving behind his wife Valliammal and his daughter, Pazhanathal @Pazhani Ammal as his legal heirs. It is the case of the plaintiffsthat since the whereabouts of their mother, Pazhanathal were notknown for the past 25 years, her absence can be regarded as 'civildeath' and as such, they are entitled to the 1/4th share of VayyapuriGounder in the suit property as the legal heirs of Pazhanathal.Contrarily, it is the case of the first defendant that the plaintiffsare not the children of Pazhanathal; moreover, Pazhanathal hadmarried some other person and is living in a Village and as such, theplaintiffs are not entitled to any share in the suit property. It isalso the case of the first defendant that Valliammal, before herdeath had executed a Will in his favour, bequeathing him the 1/4thshare of Vayyapuri Gounder in the suit property; therefore, theplaintiffs are not entitled to any share in the suit scheduleproperty.10.On answering the following issues and on consideration ofthe facts and circumstances of the case, the Trial Court decreed thesuit in favour of the plaintiffs that they are entitled to 1/4th sharein the suit property:(i)Whether it can be construed that Pazhanathal is dead as perlaw?(ii)Whether the plaintiffs are the legal heirs of Pazhanathal?(iii)Whether Pazhanathal is entitled to share in the suitschedule property?(iv)Whether the Will dated 01.02.1988 is true and valid in law? https://hcservices.ecourts.gov.in/hcservices/ (v)Whether the plaintiffs are entitled to partition of theshare in the suit schedule property ?11.Though the Trial Court has answered the above issues anddecreed the suit in favour of the plaintiffs, this Court feels itnecessary to discuss each issue in detail to come to a properconclusion.12.It is seen that the first plaintiff, who was examined asP.W.1 has deposed that, originally, half share of the suit propertywas in possession of Subbae Gounder and the other half share devolvedupon Pazhanisamy Gounder; after the death of Subbae Gounder, hisshare devolved upon his sons, Rangae Gounder and Vayyapuri Gounder;after the death of Rangae Gounder, his share devolved upon thedefendants 1 and 2 and after the death of Vayyapuri Gounder, hisshare devolved upon his wife, Valliammal and his daughterPazhaniammal @ Pazhanathal; Pazhanathal is his mother and plaintiffs2 and 3 are his sisters; his father is Murugappa Gounder; thewhereabouts of Pazhanathal are not known and that she has left thefamily before 28 years when the plaintiffs were children and theaverment of the 1st defendant that the plaintiffs are not the childrenof Pazhanathal is false and Ex.A3-Horoscope is marked to prove theircase. One Govindasamy, who was examined as P.W.2 has deposed thathe is residing in Aathupalayam and that he knows the plaintiffs verywell, they also belong to the same Village; the mother of theplaintiffs is Pazhanathal and their father is Muruguppa Gounder andthey also belong to the same Village; the averment of the 1stdefendant that the plaintiffs are not the children of MurugappaGounder and Pazhanathal is false; the mother of Pazhanathal isValliammal; till Pazhanathal's marriage, Valliammal was living withher in Aathupalayam and Valliammal died only before 3 years.12a.The first defendant, who was examined as D.W.1 in hisevidence has deposed that Valliammal is the wife of Vayyapuri Gounderand Pazhanathal is their daughter; Valliammal had passed away before3 years; after the death of Vayyapuri Gounder, his wife Valliammalhad been in possession and enjoyment of his share in the suitproperty; he doesn't know who the plaintiffs are and it is false tostate that the 1st plaintiff had been ploughing the lands along withValliammal; Pazhanathal was married to one Muruguppa Gounder and shehad no issues and after 7 to 8 months of marriage, Pazhanathal wentto live with some other person and that the plaintiffs are not thechildren of Pazhanathal. 13.From the evidence of P.Ws.1 and 2 and D.W.1, it isundoubtedly clear that Pazhanathal is the daughter of Valliammal andthat she has been married to one Murugappa Gounder. To prove theirparentage, the plaintiffs have relied on Ex.A3-Horoscope of the first https://hcservices.ecourts.gov.in/hcservices/ plaintiff written in palm leaves, which shows that his parents areMurguppa Gounder and Pazhanathal. The first plaintiff in hisevidence has deposed that his mother departed them while they werechildren. The first defendant denies the claim of the plaintiffs thatthey are not the children of Pazhanathal and that Pazhanathal went tolive with some other person and she is presently living in Valpaarai;but, he has not proved her place of living. If the statement of thefirst defendant that Pazhanathal is alive and is living elsewhere,the onus lies on him to prove the same. In his pleadings and evenin the evidence, the first defendant has stated that the plaintiffsare not known to him and that they are not the children ofPazhanathal; if so, he should have stated as to who their parentsare. Since, according to the plaintiffs the whereabouts ofPazhanathal are not known for the past 28 years and the 1st defendantis unable to prove Pazhanathal's existence, this Court has nohesitation to hold that Pazhanathal is dead as per law. 14.Though the plaintiffs have relied on Ex.A3-Horoscope toprove their parentage, a question arises as to why the plaintiffshave not filed their school certificates to prove their parentage.Now, the point which has to be decided is that whether horoscope canbe relied on as an acceptable evidence. In the Horoscope marked asEx.A3, the father and mother of the first plaintiff are written asMurugappa Gounder and Pazhanathal. At this stage, it is pertinent tonote that the Horoscope is written in Palm Leaves, which indicatesthat the same should have written many years back. Though Horoscopeis a very weak piece of material to prove the age of a person, inmost cases, the maker of it may not be available to prove that it wasmade immediately after the birth. A statement in a horoscope neednot necessarily be made at about the time of the birth of the childto attract Section 32(5). Even it is made subsequently, it shouldhave been made before the question in dispute was raised and theother conditions mentioned earlier are satisfied. Therefore,horoscopes cannot be said that they are not admissible in evidenceunder Section 32(5). If the horoscope constitute a statement ascontemplated under Section 32(5), then undoubtedly it would beadmissible in evidence. The said view has been held in a judgment ofthis Court reported in 1978 MLJ 460 (The Secretary to Government andanother vs. T.V.Hari Rao). In view of the settled proposition andtaking into account the nature of the document, i.e. Horoscope, thisCourt has no hesitation to come to a conclusion that the Horoscopemarked on the side of the plaintiffs is true and the plaintiffs arethe legal heirs of Pazhanathal. As such, the findings of the TrialCourt in this regard are correct.15.Coming to the question as to whether Pazhanathal isentitled to the 1/4th share of Vayyapuri Gounder, it is seen thatafter the death of Vayyapuri Gounder, his share of the suit propertydevolved upon his wife Valliammal and it is also admitted by thefirst defendant that Pazhanathal is the daughter of Valliammal and https://hcservices.ecourts.gov.in/hcservices/ Vayyapuri Gounder; while so, naturally after the death of Valliammal,the share of Vayyapuri Gounder devolves upon their daughterPazhanathal. But, the first defendant has stated that Valliammal hadexecuted a Will dated 01.02.1988 in his favour bequeathing him the1/4th share of Vayyapuri Gounder in the suit schedule property, assuch, Pazhanathal is not entitled to any share in the suit property.To decide the question as to whether Pazhanthal is entitled to sharein the suit property, the genuineness of the Will dated 01.02.1988has to be determined.16.D.W.1, the first defendant in his evidence has stated thatin her last days, Valliammal was living with him in his house and shehad been affectionate to him and she had executed a Will dated01.02.1988 bequeathing her share in the suit schedule property in hisfavour and that one Kandasamy Gounder and Muthusamy Gounder havesigned the Will as witnesses. The said Will dated 01.02.1988 ismarked as Ex.B1. D.W.2, namely, Muthusamy has deposed thatValliammal has executed the Will in favour of the first defendant; heand another person, namely, Kandasamy Gounder had signed the Will aswitnesses and the same has been witnessed by Valliammal. At thisstage, it would be useful to refer to the averments made by the firstdefendant. The said portion reads as under:"Before her death, Valliammal, wife of VayyapuriGounder has executed a Will on 01.02.1988 bequeathing theright in the above properties in favour of the firstdefendant. Now after the death of Valliammal, thisdefendant alone is in possession and enjoyment of theproperties and the plaintiffs never enjoyed the propertiesat any time in any way."17.The first defendant neither in the written statement nor inhis deposition has stated that Valliammal had executed the Will in asound and disposing state of mind; even D.Ws.2 and 3 have notexpressed anything about the state of mind of Valliammal. As regardsthe execution of the Will, D.W.1 in his evidence has deposed that heprepared the Will at Tirupur and thereafter, went toChinnakalipalayam and obtained signature in the Will from Valliammalthere; that he dictated the contents of the Will to the typist; thatthe witnesses were in Chinnakalipalayam itself and on instructions,he took the scribe to Chinnakalipalayam; on the date of execution ofthe Will, Valliammal was affected with cold and that she affixed herthumb impression twice. For better understanding, the oral evidenceof D.W.1 is extracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "rpd;df;fhspghisak; vd;gJ vd;Dila Ch;/ capiy jpUg;g{hpy; jahh;bra;J. Rpd;df;fhspghisak; ngha; ts;spak;khsplk; ifbaGj;J th';fpndhk;/capy; rhrdj;jpw;F cz;lhd thrf';fis ehd; jhd; jl;lr;rhplk; Twpndd;/rhl;rpfs; vy;yhk; vd;Dila Chpnyna ,Ue;jhh;fs; mth;fs; jpUg;g{Uf;Ftutpy;iy. gj;jpuk; jahh; bra;jtiua[k; ts;spak;khs; Cuf;F Tl;otur;brhd;djpd; nghpy; Tl;or; brd;nwd; /// capy; vGjpa j[pdk; ts;spak;khSf;Frsp gpoj;j khjphpapUe;jJ/ gj;jpuk; jahh; bra;jth; rhl;rpfis miHj;Jte;jt[ld; goj;Jf; fhl;odhh;/ gj;jpuk; jahhpj;jth; capiyj; jtpu ntW vija[k;bfhz;Ltutpy;iy/ ts;spak;khs; ,U nuiffs; gjpj;jhh;/ "18.A reading of the evidence of D.W.1 clearly reveals thatValliammal had not come forward to execute the Will. It is not statedanywhere that Valliammal is an illiterate person. Even assuming thatValliammal is an illiterate person, as per Section 68 of the EvidenceAct, an illiterate person cannot read the contents of document, andso one who wants to rely on such a document must establish that theilliterate person knew the contents and purport of the document.Merely impression of such an illiterate person on such a deed, acourt cannot hold that the said document was duly executed, as dueexecution of a deed does not merely mean signing on or putting one'smark to a deed without knowing the contents of the same. Dueexecution of a document must always indicate that the mind of theexecutant did concur with the contents of the document and with suchconcurrence she put her signature or thumb impression on the deed.So long as that is not done, it cannot be said that the document wasduly executed. From the oral evidence, it is seen that the contentsof the Will were read to her and only thereafter, she had affixed herthumb impressions.19.It is further seen that the Will is an unregistereddocument. Though it is not necessary for a Will to be registered,D.W.1 has not explained under what circumstances the Will was notregistered. The Trial court, while discussing the genuineness of theWill has taken note of the ink of the signatures in the Will, thatD.Ws.2 and 3 have used one pen and the scribe to the Will has usedanother pen, further, the text written near the signatures of thewitnesses in the Will is written in some other pen; i.e., the ink isdifferent. While determining the genuineness of the Will, the viewtaken by the Trial Court that the ink contained in the signatures andthe text therein is different from each other cannot be acceptable,for the reason that each of the witnesses and the scribe would behaving their own pen; moreover, there is no hard and fast rule that aperson must have only one pen; he or she may have one or more pensand the text written in the Will near the signature of the witnessesmight have been written using another pen owned by the witnesses orthe scribe. The difference in the ink as taken note of by the TrialCourt cannot be a valid ground to come to a conclusion that thesignatures in the Will were not obtained on the same day. https://hcservices.ecourts.gov.in/hcservices/

20.A perusal of the Will dated 01.02.1988 shows that there isdifference in the thumb impression of Valliammal in the first andsecond pages of the Will, and it raises a suspicion of the Will. Thefirst defendant has not proved that Valliammal had willingly executedthe Will in his favour. D.W.1 in his evidence has further statedthat after the death of Valliammal, he and his brother, the 2nddefendant were cultivating the suit schedule property together andthey were in good terms. He has further stated that he has notdisclosed to his brother, the 2nd defendant about the Will and hisbrother came to know about the Will only after the matter came toCourt. When the first defendant is in good terms with his brother,he ought to have disclosed to him about the Will; but he has not doneso, which raises a suspicion that the Will might have been created.Assuming that the Will is true, the first defendant ought to havecultivated the suit schedule property individually, but he hascultivated the land along with his brother. Had the Will beenexecuted by Valliammal much before her death, the first defendantwould have disclosed the same to his brother and would have beencultivating the lands individually. Since the existence of a Will inhis favour was not disclosed by the first defendant even to hisbrother, this Court feels that the Will must have been created withsome motive.21.It is also seen that before the institution of the suit,the plaintiffs have caused a lawyer's notice to the defendants on22.11.1989 and the same is marked as Ex.P4. The defendants 2 to 4have received the legal notice and the acknowledgement cards aremarked as Exs.P6, P7 and P8. The legal notice sent to the 1stdefendant has returned and the same is marked as Ex.P5. An analysisof the entire oral and documentary evidence would make it very clearthat the Will has been created with a motive to grab the property ofValliammal. The difference in the thumb impressions of Valliammal,non-disclosure of the Will by the first defendant to his brother, thesecond defendant and cultivation of the suit property jointly,absence of pleadings that Valliammal had executed the Will in a sounddisposing state of mind and failure to prove the same would all go toshow that the Will had been created by the 1st defendant. Moreover,there is no compelling circumstance for Valliammal to deprivePazhanathal of her legitimate share over her father's property andexecute a Will in favour of the first defendant, bequeathing him herhusband's 1/4th share in the suit property. Nowhere in the plaint orin the written statement, it is stated that Valliammal had a quarrelwith Pazhanathal and they were not in good terms. When therelationship between the mother and the daughter was smooth, there isno reason for Valliammal to execute her property in favour of thefirst defendant. In the absence of any convincing reason by thefirst defendant regarding the deprivation of share of Pazhanathal andwhen the onus to prove the genuineness of the Will lies on him, this https://hcservices.ecourts.gov.in/hcservices/ Court holds that the Will is not true and the view taken by the TrialCourt in deciding the Will as untrue and invalid is confirmed.22.As such, the plaintiffs are declared to be the legal heirsof Pazhanathal and the Will in favour of the 1st defendant dated01.02.1988 is not genuine and valid and hence the plaintiffs areentitled to the 1/4th share of Vayyapuri Gounder. Therefore, I findno infirmity in the finding rendered by the Trial Court and it doesnot require any interference. The judgment and decree of the Courtbelow are confirmed.Resultantly, the appeal suit fails and stands dismissed. Nocosts.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarabeTo1. The Subordinate Judge,Tiruppur.2. The Section Officer, VR Section,High Court, Madras.+1 cc To Mr.R.Saseetharan, Advocate, SR.35902+1 cc To Mr.M.M.Sundresh, Advocate, SR.35189A.S.No.532 of 1994ksk [co]gkg/29.7