Madras High Court · 2025

A.S(MD)No.278 of 2023JUDGMENTThis Appeal Suit is filed against the judgment and decree, dated 11.03.2019 passed in I.A.No.532 of 2016 in O.S.No.68 of 2014 on the file of the VI Additional District Judge, Madurai.2. The appellant is the petitioner/plaintiff in I.A.No.532 of 2016 in O.S.No.68 of 2014 on the file of the VI Additional District Judge, Madurai. The respondents are the respondents/defendants in that petition. 3. For the sake of convenience, the parties are referred to as per their rank before the trial Court.4. The brief facts are as below:(a) The case of the petitioner/plaintiff is that he is the son of the 1st respondent and brother of the 2nd respondent. The petitioner has filed a suit in O.S.No.68 of 2014 on the file of the VI Additional District Court, Madurai, for partition of his 1/3 share in the suit property. In that suit, exparte preliminary decree for partition was passed on 20.01.2015. The petitioner and the respondents are entitled to 1/3 share each in the suit property. After preliminary decree, the first respondent, who is none other 2/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 2023than the mother of the petitioner and the second respondent, died intestate on 29.04.2015, thereby, the petitioner and the second respondent are entitled to 1/2 share each in the suit property. Hence, the petitioner has filed a petition for final decree for partition by appointment of an advocate/commissioner to divide the suit property into two shares by metes and bounds and to allot 1/2 share in the suit property to the petitioner.(b) The case of the 2nd respondent/2nd defendant is that the petitioner has not maintained their mother. The second respondent is unmarried and he has been all along maintaining his mother and due to love and affection, their mother, first respondent herein, executed a registered Will dated 02.02.2015, bequeathing her 1/3 share in the suit property in favour of the second respondent. When the first respondent died, the petitioner, his wife and his son did not attend and participate in the last rites and failed as a son to pay any homage to his mother. Hence, the petitioner is not entitled for 1/2 share in the suit property.5. The trial Court framed the following issues upon the pleadings of both parties.Whether the petition for final decree for partition by appointing an advocate/commission is to be allowed or not?3/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 20236. The trial Court conducted an elaborate enquiry and during enquiry, the petitioner/plaintiff examined himself as P.W.1, but no exhibit was marked. On the respondent/defendant's side, three witnesses were examined as R.W.1 to R.W.3, and three exhibits were marked as Ex.R.1 to Ex.R.3. In addition, Ex.X.1 to Ex.X.3 were also marked by the witnesses.7. On appreciation of evidence and the submissions made on behalf of the parties, the trial Court has partly allowed the petition for allotment 1/3 share in the suit property to the petitioner by way of appointing advocate/commissioner by its judgment and decree, dated 11.03.2019.8. The judgment and decree of the trial Court, dated 11.03.2019, are under challenge in this appeal.9. Heard both sides and perused the material records along with the grounds of appeal.10. The point for consideration in this appeal is;Whether the original Will of Ex.R.1, dated 02.02.2015, is (concocted one as alleged by the appellant/plaintiff) true and legally valid?4/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 202311. The learned counsel for the appellant/plaintiff in support of his case submitted the following points i) that the testator of the Will in question, being the mother of the petitioner and the second respondent, died only after the preliminary decree was passed in the suit. ii)The mother was not hale and healthy and was not in a sound state of mind. iii)The 2nd respondent/R.W.1 has also admitted that their mother was not well for the past 10 years and she was affected by stroke iv) the respondent also admitted in his cross examination that the counsel who is conducting his case, alone drafted the Will, and his evidence in this respect is as follows: vd; jhahh; fle;j 10 Mz;Lfshf cly;epiy“ rhpapy;yhky; ,Ue;jhh; vd;why; rhpay;y> jd; kfnd jd; kPJ tHf;F jhf;fy; bra;jjhy; mth; cly;epiy rhpapy;yhky; ,Ue;jhh;/ mth; ];;lnuhf;fpdh;y ghjpf;fg;gl;L ,Ue;jhh;. mth; 22 ehl;fs; kUj;Jtkidapy; rpfpr;irapy; ,Ue;jhh;. mjd; gpd;dh; mtiu ehd; mtiu tPl;oy; itj;J ftdpj;J te;njd; ehDk; vd; tHf;fwpQUk;… vd; jhahiu gjpthsh; mYtyfj;jpw;F miHj;J brd;W capiy gjpt[ bra;njhk; vd;W brhd;dhy; rhpjhd;. capiy gjpt[ bra;tjw;F cjtp bra;j tHf;fwpQh;jhd; jw;nghJ ,e;j tHf;if elj;jp tUfpwhh; vd;W brhd;dhy; rhpjhd;.”The counsel further argued that the attestor of the Will was examined as R.W.2, who is none other than a well known person of the said advocate, he deposed that ?he read the Will, which was in Tamil?, but the Ex.R.1 - Will is in English. The R.W.3 - 5/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 2023staff of the registration office stated in his evidence that the testator had signed in the Sub Registrar Office, but the Will bears only thumb impression. The original Will was not produced, only certified copy of the Will was produced and marked by stating that the original Will was lost. Under these cloud of suspicious circumstances, the Will is a concocted one and not a genuine one, as held by the trial Court. Hence, he requested to allow the appeal as the trial Court order is not sustainable. 12. Per contra, the learned counsel for the respondent/2nd defendant submitted that the mother was always looked into and maintained by the respondent only. The petitioner and the respondent are brothers, the respondent stated no objection for the petitioner to get appointment on compassionate grounds. After getting job, the petitioner neglected the mother and the brother. The petitioner has not stated in his evidence on what kind of disease she was affected. He relied on the evidence of the petitioner, which is as follows:vd; jahhiu mth; capUld; ,Ue;j fhyj;jpy; ehd;“ guhkhpf;ftpy;iy vd;why; vdf;F jpUkzkhFk; tiu mtiu guhkhpj;njd; mjd; gpd; guhkhpf;ftpy;iy. vdf;F 1996y; jpUkzkhdJ. vd; jhahUf;F cly;epiy rhpapd;wp ,Ue;jJ mtUf;F vd;d tpjkhd cly;cghij vd;Wk; ve;j njjpapypUe;J mth; cly;epiy rhpapd;wp gLf;ifapy; ,Ue;J te;jhh; vd;Wk; vd; epU:gzthf;F:Kyj;jpy; Fwpg;ghf Twtpy;iy vd;why; rhpjhd;.”6/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 2023He has further submitted that without having any knowledge and without seeing the Will, the petitioner questioned the registered will as if it was a forged one. The petitioner admitted these facts in his evidence. The petitioner has also admitted that he has not taken any steps against the respondent for concocting the Will. Merely an advocate scribing the Will and conducting the case would not make the Will as a concocted one. The Will scribed by an advocate is a valid one and relied on the citation of this Court reported in 2023 (1) CTC 325 (Savithri /v/ Nagaraj Maliamma (deceased) case. The learned counsel further submitted that the registrar, after satisfaction of the executor's mental capacity, registered the Will and if the registrar had doubted the mental capacity of the executor, he would have refused to register. The presence of the testator/mother of the Will before the Sub Registrar has been proved by the respondent through the evidence of R.W.3 and Ex.R.2 CD. R.W.2 has clearly deposed about the presence of the testator and he saw the thumb impression put by the testator and then he signed the Will. So, the respondent clearly proved the Will as per Section 63 of the Indian Evidence Act. The petitioner cannot take advantage of the respondent side weakness. The petitioner has to prove his case by placing acceptable oral and documentary evidence. The mother was all along maintained by the respondent and as such, upon love and affection, the mother executed the registered will in favour of the respondent. The petitioner, except himself, has not adduced any other oral or documentary evidence. The petitioner has 7/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 2023not proved his case by letting in rebuttal presumption. The trial Court has correctly appreciated the evidence adduced on both sides. Therefore, the counsel submitted that there is no necessity to interfere with the finding of the trial Court and requested to dismiss the appeal. 13. On hearing both sides and on perusal of material records, it is clear that the petitioner and the respondent are brothers, the first defendant, since the deceased was their mother and the petitioner got employment under compassionate grounds for which the respondent stated no objection. Further, the petitioner has not maintained his mother after his marriage, and the mother was maintained by the respondent till her death. While his mother was alive, the petitioner filed this suit for partition against his mother and brother, seeking 1/3 share in the suit property. In that suit exparte decree was passed on 20.01.2015. Thereafter, the mother died on 29.04.2015. So, the petitioner filed a petition alleging his share has been enlarged as his mother died intestate and for allotment of ½ share in the suit property. The respondent claims that his mother executed a registered Will, dated 02.02.2015, bequeathing her 1/3 share in his favour. The petitioner agitates that the Will is a concocted one.14. It is the case of the respondent that the Will, dated 02.02.2015 is a registered one. The registration of the Will is not disputed by the petitioner. But it is a 8/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 2023well settled proposition of law that mere registration of a Will would not attach to it a stamp of validity and it must still be proved in terms of the legal mandates under the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. 15. Now, Section 63 of the Succession Act reads thus:-''?63. Execution of unprivileged wills.? Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:?(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence an d by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the 9/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 2023testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.?16. Section 68 of the Evidence Act makes it clear that at least one attesting witness has to be examined to prove the execution of a Will. It is true that in the case at hand, DW2 was the attesting witness and he was examined on the side of the respondent. Now, the question is whether they had deposed to the effect that the Will in question was executed in accordance with sub-rules (a) to (c) thereunder.17. In this respect R.W.2 attestor of the Will clearly deposed that he saw the thump impression put by the testator. In his evidence, R.W.2 clearly deposed as follows:nkw;go capyhdJ 02.02.2015k; njjpad;W gj;jpugjpt[“ MgPrpy; jhf;fy; bra;aa;gl;lJ. mq;Fs;s gjpthsh; mijg; goj;Jg; ghh;j;jJk; 1k; gpujpthjpia ghh;j;J capy; vGj kdg;g{h;tkhf rk;kjkh vd;whh;. 1k; gpujpthjp ey;y kdg;g{h;tkhf rk;kjpf;pfpnwd; vd;Wk; vdf;F ];;l;nuhf; Mfpptpl;lJ mjd; fhuzkhf ifbaGj;jpl KoahJ vd;whh;. ifnuf itf;f rk;kjkh vd;W gjpthsh; nfl;lft[k; 1k; gpujpthjp vdf;F KG rk;kjk; vdj; bjhptpj;jhh;. ”The respondent has produced Ex.R.2 CD to show the active presence and participation by the testator of the will during registration proceeding. The evidence 10/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 2023of R.W.2 and the Ex.R.2 were not disproved by the petitioner by producing rebuttal evidence. The petitioner has not examined any other evidence to prove his alleged illness of the testator of the Will. The trial Court correctly came to conclusion that ?1996f;F gpd;dh; 1k; gpujpthjp ,wf;Fk; tiu ey;y epiyapYk; jpl rpe;jida[lDk; ,Ue;jhuh vd;gJ gw;wp jdf;F bjhpahJ vd;W 1k; gpujpthjp gw;wp mwpe;jpuhj k.rh.1d; Tw;wpw;F khwh vjph;kDjhuh; jug;gpy; Kd;dplg;gl;Ls;s Mtzq;fspd; mog;gilapYk; 1k; gpujpthjp kUj;Jtkidapy; rpfpr;ir bgw;whh; vd;gjhnyna kDjhuh;h jug;gpy; Twg;gLk; thjk; bghUj;jkw;wjhFk;...? Therefore, the Trial Court rightly held that the propounder of the Will has established by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound disposing state of mind and that she understood the nature and effect of the dispositions and put her signature out of her own free Will.18. It is not the case of the petitioner that after execution, his mother cancelled the Will. So the fact that the original Will was lost is not fatal to the case of the respondent. The Will is a registered one. That Will was proved by the respondent. The loss of Will was explained and the certified copy of the same was marked as Ex.R.1. Moreover, the petitioner himself admitted that he did not take any coercive steps against the respondent after coming to know about the existence of a Will. 11/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 202319. Yet another argument that the scribe of the Will is the respondent counsel, which creates a suspicious circumstance, can not be countenanced. Similarly, the non examination of the scribe/Advocate is also not fatal, when it is proved the executrix was in sound state of mind and good health and the Will was prepared at her direction, read over to her before putting her signature. This was clearly substantiated by the respondent by examining R.W.2 and by producing Ex.R.2 - CD. The citation 2023 (1) CTC 325 relied on by the respondent is in favour of the respondent. The petitioner has not produced any contrary material to disprove the Will. The petitioner has also not elicited any provision of law which prevents an advocate to scribe a document in favour of a litigant for whom he conducts the case. The very case of the respondent is that the testator was being looked after only by him, and was not at all disputed by the petitioner. So it is quite normal for a person to execute a Will in favour of a person who showed love and affection and took care of the testator till death. Hence, the petitioner's objection is that the Will is concocted one, is hereby rejected and the point is answered accordingly.20. The trial Court has correctly appreciated the evidence adduced on both sides, correctly came to the conclusion and ordered for allotment of 1/3 share in the suit property through appointment of advocate/commissioner. For all these reasons, 12/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 2023the judgment and decree of the trial Court are sustainable in law and the same need not be interfered by way of this appeal suit. Thus, the appeal fails.21. In the result,i) This Appeal Suit is dismissed with cost. ii) The judgment and decree, dated 11.03.2019 passed in I.A.No.532 of 2016 in O.S.No.68 of 2014 on the file of the VI Additional District Judge, Madurai, is confirmed. Consequently, the connected Miscellaneous Petition is closed.08.04.2025NCC : Yes / NoInternet : Yes / NoIndex : Yes / NoVSDTo1.The VI Additional District Judge, Madurai.2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.13/14 https://www.mhc.tn.gov.in/judis A.S(MD)No.278 of 2023 P.VADAMALAI, J.VSDPre-Delivery Judgment made inA.S(MD)No.278 of 2023andC.M.P(MD)No.15087 of 202308.04.202514/14