High Court · 2025

S.A.(MD)No.99 of 2018J U D G M E N TThe appellants/plaintiff in O.S.No.49 of 2006 has filed this appeal challenging the judgment and decree passed in A.S.No.61 of 2016 on the file of the the Fast Track Mahila Court, Dindigul, wherein the respondents/defendants herein have filed an appeal against the judgment and decree passed in O.S.No.49 of 2006 on the file of the Principal Subordinate Court, Dindigul, and the appeal was dismissed by confirming dismissal order passed by the trial Court. Challenging the same, the present appeal has been filed by the appellant/plaintiff. 2. For the sake of convenience and brevity, the parties herein after will be referred to as per their status/ranking before the trial Court. 3. The brief averments made in the plaint are as follows:-The father of the plaintiff namely, Chandrasekaran and the first defendant are brothers. The defendants 2 & 3 are the purchaser of the suit schedule property from the first defendant. The grand father of the plaintiff name is Ramachandran. He has 5 sons and two daughters including the father of the plaintiff and the first defendant. He was the owner of the suit schedule property and he purchased a property in the 2/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 2018year 1982. He executed a registered Will dated 06.02.1998 in favour of the first defendant. Subsequently, he said to have executed a Will dated 27.10.1999 in favour of the plaintiff. The said Ramachandran died on 03.11.1999. In the said Will, he bequeathed his suit schedule property with a condition that the wife of the Ramachandran namely, Maragathavalliis enjoying the property till the attainment of majority of the plaintiff. At the time of Will, the plaintiff was minor and hence, he bequeathed the property in favour of the minor with life intestate to his wife Maragathamani. In the year 2000, the first defendant executed a sale deed in favour of the defendants 2 and 3, on the basis of the registered Will dated 06.02.1998. After attaining majority, the plaintiff sent a legal notice on 16.01.2002 to the first defendant about the Will executed by the Ramachandran in favour of him. The same was received by the first defendant and suitable reply was given on 21.02.2002. Thereafter, the plaintiff filed a suit in O.S.No.49 of 2006 seeking declaration and recovery of the suit schedule property from the defendants. 4. The brief averments of the written statement filed by the first defendant are as follows:-The first defendant denied the execution of the Will dated 3/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 201827.10.1999 in favour of the plaintiff. He pleaded that the plaintiff forged and fabricated the Will. The alleged execution of Will dated 27.10.1999, was not executed in fit state of mind. Because, the said Ramachandran died on 03.11.1999 at the stage of loss of memory. It shows that the said Ramachandran was not in a position to execute the Will and the same is forged one. Further, the plaintiff never resided with the deceased Ramachandran and he resided at Chennai with his father. 5. The brief averments of the written statement filed by the defendant 2 & 3 are as follows:-The defendants 2 and 3 also filed a written statement stating that they are the bone fide purchasers of the suit schedule property. The Will dated 27.10.1999 was forged one. The present suit was filed by the plaintiff with the forged Will. 6.Based on the above said pleading, the trial Court has framed the following issues:-1.Whether the plaintiff is entitled for the relief of declaration and recovery of possession in respect of the suit schedule property?4/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 20182.What other reliefs the plaintiff is entitled to?7. Before the trial Court on the side of the plaintiff, the plaintiff was examined as P.W.1 and also others were examined as P.W.2 to P.W.4 and Ex.A.1 to Ex.A.7 were marked. On the side of the defendants, the defendants 1 and 2 were examined as D.W.1 and D.W.2 and another one was examined as D.W.3 and Ex.B1 to Ex.B18.7.1. After analyzing the evidence adduced on both sides, the trial Court has decreed the suit in favour of the defendants. Aggrieved over the said judgment and decree, the plaintiff filed an appeal before the Fast Track Mahila Court, Dindigul, in A.S.No.61 of 2016. The learned Appellate Judge dismissed the appeal by confirming the finding given by the learned trial Judge. Challenging the same, the present appeal has been filed by the plaintiff. 8.1. The learned counsel for the appellant would submit that both the Courts below failed to consider that P.W.2 and P.W.3 are the reliable witness and the same was not properly considered by the learned trial Judge and the Appellate Judge. 5/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 20188.2. The learned counsel for the appellant would also submit that the learned Appellate Judge has not considering fact that there was material discrepancies between the evidence of P.W.2 and P.W.3, erroneously held that the Will was not proved beyond reasonable doubt.8.3. The learned counsel for the appellant would further submit that both the Courts below failed to consider that on the basis of the document produced by the appellant, it is clear that there is circumstances to change the mind of the deceased Ramachandran to execute a Will in favour of the appellant. After obtaining the Will, he had taken to his Village namely, Ayyampalayam, where he died. The first defendant never taken care of deceased Ramachandran and the same was not properly considered by both the Courts below and hence, he seeks to set aside the concurrent judgments passed by both the Courts below by allowing the this appeal. 9.1. The learned counsel for the respondents would submit that both the Courts below considered the evidence of P.W.2 and P.W.3 are not corroborated with the material particulars. More particularly, their 6/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 2018presence in the document writer office which is situated opposite to the registration office, is not proved. 9.2.The learned counsel for the respondents would further submit that the learned trial Judge as well as the Appellate Judge correctly appreciated the evidence and held that the execution of Will was not proved. The said concurrent finding needs no interference. More particularly, when there was no infirmity in the concurrent judgment of both the Courts below in appreciating the said evidence, this Court has not jurisdiction to interfere with the finding of the fact under Section 100 of C.P.C.9.3. The learned counsel for the respondents would also submit that P.W.4, the father of the appellant was residing at Chennai and he has no good terms with the deceased Ramachandran and there was no evidence to prove that the presence of deceased Ramachandran on the date of the execution and also the presence of the appellant and his father, P.W.4 at the scene of occurrence. The said Ramachandran died by committing suicide due to the health issues and the specific evidence 7/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 2018available on record shows that he was suffering from various ailments and he was bed-ridden. One of the son D.W.4 deposed that the Ramachandran before his death has some serious health issues apart from the loss of memory. In the said circumstances, the alleged execution of Will is suspicious one and the learned counsel also submit that the first defendant managed the welfare of both the deceased Ramachandran and his wife Maragathavalli before and after the demise of Ramachandran. The said Maragathavalli was residing in the village after the demise of Ramachandran. The first defendant has periodically sent money to maintain herself and he also produced some money order receipts also. The said money order was presided with the letter sent by the sister of the first defendant. In the said letter, it is stated that that money order was made towards the due amount of his mother and milk etc., But, the first defendant sent more money than the due amount. The communication between the first defendant and others is clearly shows that he has taken care of his mother as well as father. The letter marked under Ex.B.11 on the side of the defendants clearly shows that there was a frequent communication between the parents of the first defendant and the first defendant. Therefore, note down the concurrent finding, this circumstances also shows that the first defendant has acted in accordance 8/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 2018with the expectation expressed in the Will and he also taken the same. 9.4. The learned counsel would also submit that the father of the appellant never taken care of the deceased Ramachandran and he was under some financial constraints, and he also wrote a letter to the deceased Ramachandran to give an amount to meet out some expenses. In the said circumstances, there was no option of execution of Will and the same was rightly held by both the Courts below and hence, he seeks confirming the judgment and decree of both the Courts below. 10. This Court considered the rival submissions made by the learned counsel appearing on either side and perused materials available on records and also the precedents relied upon by them.11. At the time of admission, the following question of law was framed by this Court:-Whether the Will in Ex.A2 has been proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872?9/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 201812. Both the Courts below have disbeleved the testimonies of P.W. 2, P.W.3 declined to accept the case of P.W.1 that the deceased grandfather Ramachandran had executed the “Will dated 27.10.1999” in his favour. 13. This Court on going through the finding of both the Courts below does not find any palpable error. Further both Courts below does not commit any error in the process of appreciation of evidence of P.W.2 and P.W.3. P.W.2 and P.W.3 are the attestors to the disputed Will dated 27.10.1999. According to P.W.1, both P.W.2 and P.W.3 are known to each other. They are well known to the Executor of Will namely, Ramachandran. But, they deposed that they belonged different villages and they are the chance witnesses. Their presence in the documentary writer office, which was situated just opposite to the registration office, is highly doubtful. They never deposed about the presence of each one at the time of execution of Will. One witness and Ramachandran deposed that he did not aware of presence of other witnesses i.e., P.W.2. He deposed that, “vd;Dld; ntW ahh; ifbaGj;J nghl;lhh;fs; vd;W bjhpahJ. uhkre;jpud; capy; vGj vd;id Tg;gpltpy;iy. Vjw;fhf mth; 10/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 2018gj;jpu mYtyfk; te;jhh; vd;Wk; bjhpahJ.” It is the specific case of P.W.2 that he is the owner of estate. With an intention to lease out the estate, he met P.W.3. One Kalidhas, the document writer had drafted the said lease deed. At that time, both were requested by Ramachandran to attest the Will. The said document writer also scribed the said “disputed Will”. To prove their presence, they never produced the said alleged lease deed. The said document writer also not examined to prove their presence. Apart from that, from the words, “vdf;F bjhpe;j rhl;rpfspd; Kd;dpiyapy;”, there was specific reference that P.W.2 and P.W.3 are known to the Ramachandran. P.W.2 and P.W.3 cogently deposed that they did not know anything about the Ramachandran. The evidence of P.W.3 is as follows:-“uhkre;jpud; vd;id Tg;gpltpy;iy.” “vdf;Fk; uhkre;jpud; nrh;itf;Fk; 35 taJ tpj;jpahrk; vd;why; rhpjhd;. bjhHpy; hPjpahd gHf;fk; ,y;iy. mtUf;F vj;jid kf;fs; vq;F ,Uf;fpwhh;fs; vd;W bjhpahJ. jhth brhj;J ve;j bjUtpy; ,Uf;fpwJ vd;W bjhpahJ. re;jpunrfud; vd;d bjhHpy; bra;fpwhh; vd;W bjhpahJ. re;jpunrfud; tHf;F tpguk; brhd;dhh;. ehDk;> mnrhf;ghg[t[k; kiy fhd;l;uhf;l; xg;ge;jk; nghl nghapUe;njhk;. gj;jpu mYtyfj;jpy; uhkre;jpud nrh;it ,Ue;jhh;. uhkre;jpud; vd; ez;gd; ,y;iy.”11/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 201814. From the above, it is clear that P.W.2 and P.W.3 are not known to Ramachandran. Their evidence are not corroborated with the evidence of each other about their presence at the time of execution of Will. P.W.2 specifically deposed that he met P.W.3 to obtain contract of his estate and write lease deed. But, P.W.2 specifically repudiated the presence of P.W.3. This material discrepancy creates doubt over their presence, and tend to disbelieve their evidence. Therefore, both the Courts below correctly disbelieved their evidence and correctly held that the case on the basis of Will is not proved. 15. This Court finds no ground to interfere with the concurrent finding of both the Courts below apart from the above reasoning of the both Courts following the material circumstance against the appellant. Firstly, it is the specific evidence of P.W.2 and P.W.3 that Ramachandran/Executor was present in the Registration Office and the place of execution also was opposite to the registration office. In the said circumstances, why the disputed Will dated 27.10.1999 had not been registered. To dispel the presence of suspicious circumstance, D.W.1, one of the son of the Executor and P.W.1's father's brother deposed that the Executor had been suffering from mental illness and other serious health 12/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 2018issue at the time of execution of Will. On 27.10.1999 the Executor committed suicide due to unbearing pain of age old illness then, the case of the appellant and the content of Will that the Executor executed the alleged Will in favour of the appellant with mental capacity is doubtful. According to P.W.1, on 03.011.1999 will was executed and the same was known to his grand mother and she was conferred life intestate in the said disputed will. During the pendency of the suit, she died on 24.05.2007. P.W.1 issued a legal notice on 16.01.2002 25.01.2002 and filed a suit in the year 2006. He has not obtained any affirmative statement from the said grandmother about the existence of first “Will” allegedly infavor of him executed. On the other hand, the case of the 1st defendant on the basis of registered will dated 06.02.1998 is well founded, it is specifically stated in the said will dated 06.02.1998 that he had taken care of the Executor. The relevant portion is as follows:-vdf;F Rkhh; 78 tajhfpwJ vd; kidtp kufjts;spAld; FLk;g tho;f;if elj;jp te;jjpy; vq;fSf;F Ie;J Mz;kf;fSk; ,uz;L ngz; kf;fSk; ,Uf;fpwhh;fs;. Nkw;gb vd; kf;fs; midtUf;Fk; ey;yKiwapy; jpUkzk; nra;J itj;J mth;fs; ey;y Kiwapy; tho;e;Jnfhz;LtUfpwhh;fs;. vd;id vd; %d;whtJ kfd; nrhf;fypq;fj;ij jtpu NtW ahUk; 13/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 2018ftdpg;gJ fpilahJ.16. The said fact, supported with further co-ordinate events. The mother of the first defendant had separate residence in the house of Ayyampalayam. One of the daughter of the deceased Ramachandran namely, Thilagavathi had periodically send a letters to the first defendant about the expenditure of wife of the deceased Ramachandran and the same were marked as Ex.B.11 and Ex.B.12. The first respondent also sent money orders to his mother. The said documents were marked as Ex.B13 to Ex.B.15. This Court perused the said documents and satisfies the appreciable conduct of the first defendant, who had taken care about the welfare of father and mother. This Court also take cognizance of the sitation that either plaintiff or plaintiff's father never taken care of either deceased father and mother.17. Therefore, in all circumstances, the case of P.W.1 that the Executor cancelled the registered Will dated 06.02.1998 through the unregistered disputed Will dated 27.10.1999 is unbelievable story and hence, this Court declines to accept the case of P.W.1 on the basis of the disputed Will. He has not dispelled the above discussed suspicious 14/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 2018circumstance surmounted around the execution of disputed will dated 27.10.1999 just four days before his death on 03.11.1999. Therefore, the substantial question of law framed is answered against the appellant.18. Accordingly, the Second Appeal is dismissed and the judgment and decree dated 24.10.2017 made in A.S.No.61 of 2016 on the file of the Fast Track Mahila Court, Dindigul, confirming the judgment and decree dated 09.08.2016 made in O.S.No.49 of 2006 on the file of the Principal Subordinate Court, Dindigul, is hereby confirmed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. 14.11.2025NCC:Yes/NoIndex : Yes/NoInternet: Yes/Nodss/sbn15/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 2018To1.The Fast Track Mahila Court, Dindigul.2. The Principal Subordinate Court, Dindigul. 3.The Section Officer, Madurai Bench of Madras High Court, Madurai.16/17 https://www.mhc.tn.gov.in/judis S.A.(MD)No.99 of 2018K.K.RAMAKRISHNAN, J.dss/sbnS.A.(MD)No.99 of 2018andC.M.P.(MD).No.2312 of 201814.11.202517/17