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2001 DIGILAW 1369 (MAD)

Gangammal and others . v. Mari Moopan and others

2001-11-19

M.CHOCKALINGAM

body2001
JUDGMENT: This second appeal has arisen from the judgment and decree of the learned Subordinate Judge, Coimbatore made in A.S.No.49 of 1983 dated 8.3.1984 reversing the judgment of the learned District Munsif, Coimbatore made in O.S.No.360 of 1976 dated 23.7.1980. 2. The respondents 1 and 2 filed a suit for partition and mesne profits with the following averments. The suit properties viz., items 1 to 3 originally belonged to one Kalimoopan. The property under item No.4 was purchased by his wife Chavalayiammal. He died on 7.8.1975. His wife predeceased him. Defendants 1 to 3 and one Manickammal who predeceased Kalimoopan, are the daughters of Kalimoopan while the sixth defendant is the son of the first defendant and the seventh defendant is the son of the second defendant. The defendants 4 and 5 were the cultivating tenants of the suit properties in items 2 and 3. After the death of Chavalayiammal, the property in item No.4 was enjoyed by her husband and her daughters. Manickammal died leaving behind her a daughter the second plaintiff and her husband the first plaintiff. After the death of Kalimoopan, the plaintiffs 1 and 2 and the defendants 1 to 3 as his heirs were entitled to succeed his property viz., 1/4th share in the suit properties. The 4th defendant was looking after the lands in item Nos.2 and 3 by paying 17 salagais of paddy as lease amount every year. The fifth defendant was a lessee on waram basis. After the death of Kalimoopan, the defendants 1 to 3 joined together in order to defeat and defraud the legitimate rights of the plaintiffs in the suit properties and were indulging in activities adverse to their interest. They were forging and fabricating documents and also making arrangements for mutation of records. The plaintiff were requesting the defendants for amicable settlement by partitioning the suit properties. But all such efforts proved futile. The plaintiffs sent a notice dated 23.1.1976 to the defendants demanding partition of the suit property. None of them expressed their willingness for effecting partition and division. The defendants 1, 2, 6 and 7 were setting up a Will which Kalimoopan did not execute at all. The said Kalimoopan was confined to bed for about 3 years and more prior to his death. He was never in a sound and disposing state of mind. None of them expressed their willingness for effecting partition and division. The defendants 1, 2, 6 and 7 were setting up a Will which Kalimoopan did not execute at all. The said Kalimoopan was confined to bed for about 3 years and more prior to his death. He was never in a sound and disposing state of mind. The Will is a fabricated or forged document, which cannot create any right in favour of the defendants 6 and 7. The alleged Will is not binding on the plaintiffs and it cannot affect their right or title in the suit property. The defendants 6 and 7 were claiming exclusive right over item No.2 of the suit property under the Will. Hence, the suit might be decreed. 3. The defendants 4 and 5/respondents 4 and 5 remained absent and were set ex parte. 4. The appellants 1 and 2 and the third respondent herein filed a written statement with the following allegations. The deceased Kalimoopan left behind him the defendants 1 to 3 as his legal heirs. He left a registered Will bequeathing his properties. Manickammal was the daughter of Kalimoopan. Though the plaintiffs were the heirs of Manickammal, they were not entitled to claim any share in the suit properties. Kalimoopan had executed a registered Will on 1.6.1974 bequeathing item 2 of the plaint schedule property in favour of his grandsons Balashanmugham the sixth defendant and Iyyadurai the 7th defendant. On the death of the testator, the defendants 6 and 7 have become entitled to the suit property by virtue of the Will and they were in possession and enjoyment of item No.2 property. None else have got any right over item No.2. Since the third defendant was deserted by her husband and since she was living with Kalimoopan, the latter wanted to make certain provision for her permanent residence and with that idea in mind he had gifted the house to her along with his sister Ayyammal. Ayyammal lost her husband and therefore she was living with her father Kalimoopan for about 50 years. In order to make provision for his widowed sister and deserted daughter, his property in item No.1 was gifted by Kalimoopan to them. During his lifetime, Kalimoopan instructed his daughters in the presence of some elder members of the community to enjoy the item No.3 property equally. In order to make provision for his widowed sister and deserted daughter, his property in item No.1 was gifted by Kalimoopan to them. During his lifetime, Kalimoopan instructed his daughters in the presence of some elder members of the community to enjoy the item No.3 property equally. Since Manickammal died long back, Kalimoopan did not leave anything to her. Thus the entire item No.3 property belonged to the defendants. No income was derived from item Nos.1, 3 and 4 and Iyyadurai. The plaintiffs were not entitled to the reliefs sought for. Hence, the suit was liable to be dismissed. 5. On the above pleadings, the trial Court framed the necessary issues, tried the suit and granted preliminary decree for partition for 1/4th share in respect of items 1, 3 and 4 of the suit schedule property and dismissed the suit in respect of the second item of the plaint schedule property. Aggrieved over the same, the plaintiffs preferred an appeal in A.S.No.49 of 1983. The said appeal was allowed and the judgment and decree of the learned District Munsif in respect of item No.2 was set aside. The aggrieved defendants have preferred this second appeal. 6. At the time of admission, the following substantial question of law was formulated for consideration: “Whether the lower Court was right in rejecting the evidence of one of the attesting witnesses on the ground that the other attesting witness was not examined, especially when the other attesting witness was said to be not alive, having due regard to Sec.68 of the Indian Evidence Act?” 7. This second appeal has arisen form the judgment of the lower appellate Court granting a relief in respect of the item No.2 of the plaint schedule property in a suit for partition, in favour of the respondents 1 and 2 herein, who filed the said suit. This second appeal has arisen form the judgment of the lower appellate Court granting a relief in respect of the item No.2 of the plaint schedule property in a suit for partition, in favour of the respondents 1 and 2 herein, who filed the said suit. The learned counsel appearing for the appellants would submit that the judgment and decree of the trial Court in respect of the 2nd item of property should have been confirmed by the lower appellate Court; that the defendants 6 and 7 were entitled to the suit second item as per the Will left by the deceased Kali Moopan and therefore the plaintiffs were not entitled to claim any share in the suit second item; that since the defendants have already stated in the written statement about the Will executed by Kali Moopan and as such there was no need for filing additional written statement once again repeating the allegations regarding the execution and the genuineness and the binding nature of the said Will; that the materials on record would clearly establish that the Will executed by Kali Moopan was true and valid and as such the defendants 6 and 7 were absolutely entitled to the suit second item; that since the suit second item belonged to the sixth and seventh defendants, the plaintiffs had no manner of right to claim any right in the suit second item that the evidence on record would prove that Kali Moopan was physically in a sound state of health and he was also mentally in a sound disposing state of mind at the time of execution of the Will in question; that it is pertinent to note that the appellants have examined one of the attesting witnesses to the document and hence the lower appellate Court was not correct in making adverse comments for non-examination of the other attesting witnesses to the Will; that the reasonings given by the lower appellate Court to set aside the judgment of the trial Court were neither sound nor correct, and in view of the sufficient evidence adduced by the appellants in proof of Ex.B-2 Will, the judgment of the first appellate Court has got to be set aside and the appeal has got to be allowed. 8. When the matter was called, there was no representation for the respondents. 9. 8. When the matter was called, there was no representation for the respondents. 9. As seen above, the respondents 1 and 2 filed a suit for partition claiming 1/4th share in four items of immovable properties shown as items 1 to 4 in the schedule to the plaint. On contest the trial Court granted a preliminary decree as asked for by the plaintiffs, granting 1/4th share in respect of suit items 1, 3 and 4 against which the defendants did not prefer any appeal and thus it has become final. On the refusal of the relief by the trial Court in respect of item No.2, the plaintiffs preferred an appeal wherein the lower appellate Court accepting the contentions of the plaintiffs’ side has granted a relief therefor also. Under such circumstances the aggrieved defendants have brought forth this second appeal. 10. Admittedly the suit item No.2 originally belonged to Kali Moopan. It was contended by the respondents 1 and 2 plaintiffs that since Kali Moopan died intestate, they were also entitled to their share in the suit item No.2 also. Contrary to the same, it has contended by the appellants that Kali Moopan executed a Will on 1.6.1974 marked as Ex.B-2, bequeathing the property to his grandsons viz., the defendants 6 and 7 in the suit and hence the plaintiffs were not entitled to any share in the said property. The trial Court found Ex.B-2 Will as true and genuine and hence denied the relief of partition in the said item to the plaintiffs. The lower appellate Court reversed the same and has recorded a finding that Ex.B-2 Will was not a true and valid document and has granted the relief of partition in favour of the plaintiffs in respect of that property also. under such circumstances, the only question that would arise for consideration in the second appeal would be as to the truth and genuineness of Ex.B-2 Will. Needless to say that a duty is cast upon the appellants/ defendants to prove the due execution and attestation of the document under Ex.B-2 as required bylaw, since they propounded the same. under such circumstances, the only question that would arise for consideration in the second appeal would be as to the truth and genuineness of Ex.B-2 Will. Needless to say that a duty is cast upon the appellants/ defendants to prove the due execution and attestation of the document under Ex.B-2 as required bylaw, since they propounded the same. In the written statement filed by the defendants 1 to 3 it was averred that on 1.6.1974, Kali Moopan had executed a registered Will and thereby bequeathed the Kilchitrai Savadi lands viz., item 2 of the plaint schedule property in favour of his grandsons, Balashanmugham son of Brahmagiri Moopan and Ayyathurai son of Ramasami Moopan absolutely and therefore on the death of the testator, these two persons have become entitled to the said property by virtue of the said Will and they were in possession and enjoyment of the same through tenants. In view of the said pleadings by the defendants 1 to 3, the plaintiffs filed an application to add the 6th and 7th defendants as parties to the suit and accordingly they were added as parties. While amending the plaint, the plaintiffs have specifically stated that the Will alleged to have been executed by the deceased Kali Moopan on 1.6.1974 was false; that for a period of about 3 years and more he was bedridden; that he was not in a sound disposing state of mind; that he never intended to execute any Will and thus the said document must have been either a fabricated or a forged one. Even after the 6th and 7th defendants were added as parties and the plaint was also amended as stated above, the 6th and 7th defendants did not file any written statement denying the same. The plaintiffs issued a notice as found under Ex.A-1. But the defendants have not chosen to send any reply. If Kali Moopan had executed Ex.B-2 Will on 1.6.1974 bequeathing the second item of property to his grand sons viz., the defendants 6 and 7, they would have issued a reply therefor. 11. As rightly pointed out by the lower appellate Court, there were so many suspicious circumstances attendant on the execution of the Will. If Kali Moopan had executed Ex.B-2 Will on 1.6.1974 bequeathing the second item of property to his grand sons viz., the defendants 6 and 7, they would have issued a reply therefor. 11. As rightly pointed out by the lower appellate Court, there were so many suspicious circumstances attendant on the execution of the Will. It is not in dispute that Kali Moopan was 85 years old at the time of his death and he was a paralytic patient confined to bed for five years and he was suffering from loss of eye sight and could not walk about even without the help of others. Ex.B-2 Will was dated 1.6.1974 and Kali Moopan died on 7.8.1975. While the first defendant examined as D.W.1 has stated all the above, the only attesting witness examined on the side of the appellants/ defendants viz., D.W.2 has given a false version stating that Kali Moopan had a good vision and was not suffering from any paralytic attack and was not bedridden. The lower appellate Court has pointed out that his evidence was highly unreliable in view of the false version given by him and that apart, he was a stranger to the family and he was a man of no means. Regarding the execution and attestation of the Will, the only witness examined was D.W.2, whose evidence was rightly rejected by the lower appellate Court. The 7th defendant was examined as D.W.3 and no importance could be attached to his evidence, in respect of Ex.B-2 document since he was a beneficiary under the Will. The appellants have no explanation to offer why Kali Moopan excluded all other grand children while they were many in number and preferred only the defendants 6 and 7 to bequeath the immovable property in item No.2. It is an admitted position that Kali Moopan had executed a Will under Ex.B-1 in the year 1962 wherein he has bequeathed the entire property giving all the members a share in the properties. Ex.B-2 Will did not contain any recital as to the reason for cancellation of the earlier Will under Ex.B-1. According to the first defendant, Kali Moopan was affectionate towards all the grandchildren. Thus there was no compelling circumstance or special reason for cancellation of the earlier Will only in respect of item No.2. Ex.B-2 Will did not contain any recital as to the reason for cancellation of the earlier Will under Ex.B-1. According to the first defendant, Kali Moopan was affectionate towards all the grandchildren. Thus there was no compelling circumstance or special reason for cancellation of the earlier Will only in respect of item No.2. The lower appellate Court has pointed out that the first defendant in his evidence has admitted that when he approached the lawyer to give reply notice, he instructed him to give reply stating that they were prepared to give share in all the properties. While it was contended on the side of the plaintiffs that Ex.B-2 document was a forged and fabricated one and so many suspicious circumstances were pointed out, a duty was cast upon the propounders to examine the other attesting witnesses who were residing at Coimbatore to prove the Will. But they were neither examined nor any explanation was tendered by the appellants. Under the stated circumstances, it cannot be held that the execution and attestation of the document under Ex.B-2 was proved as required by law. That apart a duty is cast upon the propounder to dispel the suspicious circumstances and satisfy the conscience of the Court. The Hon’ble Apex Court in a decision reported in Gurdial Kaur v. Kartar Kaur, A.I.R. 1998 S.C. 2861. has held thus; “The law is well stated that the conscience of the Court must be satisfied that the Will in question in the manner required under the Indian Succession Act, 1925, but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance.” Respectfully following the decision of the Hon’ble Apex Court cited supra, without any hesitation it has to be held that Ex.B-2 Will has not been proved by the appellants and hence the lower appellate Court was perfectly correct in holding that Ex.B-2 Will is not a true and valid document. There is nothing to interfere in the judgment of the lower appellate Court. 12. In the result, this second appeal is dismissed. The judgment and decree of the first appellate Court are confirmed. There is nothing to interfere in the judgment of the lower appellate Court. 12. In the result, this second appeal is dismissed. The judgment and decree of the first appellate Court are confirmed. There shall be no order as to the costs.