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2002 DIGILAW 556 (MAD)

S. Ramasamy v. Velappa Gounder (deceased)

2002-07-03

PRABHA SRIDEVAN

body2002
Judgment : 1. One Sennimalai Gounder had six sons and when he died on 28.06.1982, he left behind him surviving his wife and above six sons. The appellant is the second son and respondents 1 to 5 are the other sons and the sixth respondent is the wife. Respondents 7 to 9 are the Legal Heirs of the first respondent who died pending this appeal. The appellant filed a suit for partition claiming his separate share in six items of the properties on the ground that they were all ancestral properties. The Trial Court accepted his case with regard to item Nos.1 and 6, but dismissed the suit as regards item Nos. 2 to 5 on the ground that they were self acquired properties of Sennimalai Gounder and they had been dealt with by him in the Will dated 25.1.1981, Ex.B.24. 2. The learned Counsel appearing for the appellant attacked the genuineness of the Will for the following reasons. First, the third respondent and the testator were living in the same house; so the third respondent had the opportunity to exert his influence on his father; Second, the bequest was unequal as admitted by D.W.1 the third respondent that the ‘C’ Schedule property bequeathed to the third respondent, was much more valuable than the properties bequeathed to the other sons; Third, the Will cannot b e believed, because the recitals and the evidence of D.W.1 refer to the appellant withdrawing an earlier suit, but the dismissal of the earlier suit was only on 16.9.1981 a date subsequent to the Will. Fourth, according to D.W.2 the attestor, Sennimalai Gounder told him at that time of the execution of the Will that he had given his property equally to all his sons, this was factually not correct. Fifth, D.W.3 was also an interested witness and his evidence as though he was the scribe of Ex.B.24, cannot be given any weight. Sixth, the evidence of D.W.1 shows that on the date of execution of the Will, he was not in Town, but on his return, his father told him about the Will and he advised the father that it should be registered, from this it could be easily deduced from this that the third respondent, the appellant’s brother, took an active part in the preparation of the Will. He knew about the Will even before his father’s death and he also knew that he has been given an undue preference. The finding of the Trial Court that Sennimalai Gounder would have executed the Will provoked by the appellant filing the earlier suit for partition is not supported by materials. 3. The Judgement of a Division Bench of this Court reported in Kausalya, D. v. S. Sankaran, 2002 (1) CTC 650, was relied on by the Counsel appearing for the appellant. In that case, one Branch was excluded and the Will did not state that there was strained relationship between the testator and the excluded heir. The Division Bench held that while mere exclusion of one branch will not per se be a ground to disbelieve the Will, when a challenge is made that such a Will is unnatural, the Probate Court will have to consider the antecedent and the subsequent circumstances with care. For all these reasons, the learned Counsel would submit that Ex.B.24, the Will, must be rejected and the appeal must be allowed. 4. The learned Counsel also pointed out that the Trial Court’s finding that the present suit was barred by res judicata is not correct, since the appellant’s right to claim partition, gives rise to a recurring cause of action, and any way the earlier order was only one of dismissal for default and not a decision on merits. 5. The learned Counsel appearing for the respondents, on the other hand, submitted that Ex.B.24 the Will clearly shows that the testator was conscious that he should ensure that each son is provided for. His first son had been given a house as well as an oil mill. The second son (the appellant) was allotted a portion of item No.5 and the testator had even during his life time given him enough funds to do groundnut business. The third son was also given a separate oil mill with which he was carrying on his business. There is reference to allotment of funds for the fifth and sixth sons also. As regards the third respondent, who is the fourth son, the Will clearly states that right from the beginning, it was this son, who had been associated with him in the oil mill. In fact, the oil mill is in the name of the third respondent. There is reference to allotment of funds for the fifth and sixth sons also. As regards the third respondent, who is the fourth son, the Will clearly states that right from the beginning, it was this son, who had been associated with him in the oil mill. In fact, the oil mill is in the name of the third respondent. The testator has also referred to the fact that this son did not get married in order to take care of the family’s welfare as well as his father’s welfare. Therefore, reasons were given why the bequests have been so made. ‘A’ and ‘B’ Schedule properties were given to the testator’s wife for her life time and to the other five sons excluding the third respondent for their life times and absolutely to the male issues of the five sons. ‘D’ Schedule property being a residential house where the five sons, barring the third respondent were residing was given to the said sons and neither the wife nor the third respondent have any right in this property. ‘C’ Schedule property alone was given to the third respondent with the further burden that in case the fifth and sixth sons wished to have their own oil mills, the third respondent has to establish a separate oil mill for them or in lieu of that, give them Rs.10,000/- each obtaining due receipt for the same. According to the learned Counsel, there was nothing to indicate any unfairness in the Will. There is also a reference in the Will to the institution of the earlier suit by the appellant herein O.S.No.436/77 wherein the testator had filed his written statement and the appellant had withdrawn his claim. This clearly shows that the testator was in a sound and disposing state of mind, when he executed the Will. The Scribe and the attesting witness namely, D.W.3 and 2 respectively had also spoken of the due execution and attestation of the Will, and that the testator was in a sound and disposing state of mind and that he even indicated to them the manner in which he has disposed the property. So the testator was neither feeble of mind when he executed the Will, nor was he forced to do so. 6. The learned Counsel for the respondents submitted that even assuming that there was an unequal disposition that itself would not be a suspicious circumstance. So the testator was neither feeble of mind when he executed the Will, nor was he forced to do so. 6. The learned Counsel for the respondents submitted that even assuming that there was an unequal disposition that itself would not be a suspicious circumstance. For this, reliance was placed on S. Sundaresa Pai v. Sumangala T. Pai, A.I.R. 2002 S.C. 317, where a mother who had three sons and two daughters, gave one son the bulk of the immovable property. One daughter challenged the Will. But, the others did not. The Supreme Court held that the Will is not unnatural, only because there was uneven distribution of the estate. 7. Normally a will is executed only if there is an intention to deviate from the pattern in which the interest would have devolved had the executant died intestate. What the Court has to see is whether the departure is so shocking and disturbing to the Court’s conscience. In this case, there is no serious attack on the testimony of D.Ws.2 and 3, but only that in the Will a strong preference has been given to the third respondent. As regards the unequal distribution, the Will shows clearly that even during the life time of the testator, each son has been well provided for, that too at the time of the marriage. For example, the bequest in favour of the first son is extracted here: The testator speaks of performing the marriage for each of the sons providing for their residence and also for their business. In the case of the first son and the third son, the business is in the nature of an oil mill (brf;F). As regards the appellant, who is the second son, funds have been provided for setting up a groundnut business. The fifth and sixth sons were also married and for them too, the marriage expenses were undertaken by the father and some funds were allotted and as submitted by the learned Counsel appearing for the respondents in case they wanted separate oil mill (brf;F), it was the duty of the third respondent to provide the same and with this burden, the third respondent had been given the oil mill which was standing in his name. The father had taken into account not only the fact that the third respondent had been associated himself with the business and was helping the father, but also the fact that he chose to remain unmarried for the welfare of the family and the parents and also the younger brothers. So, even assuming there is inequality in the distribution of assets, it has been explained and does not shock the Court. As regards the contradiction in the date s in the recitals of the Will regarding the withdrawal of the suit and the evidence of D.W.1 that the Will was after the withdrawal of the suit, this can also be explained. In the plaint, the appellant pleads that he filed the suit in O.S.No.436 of 1977 and while it was pending, a Panchayat intervened and to uphold the family’s tradition, he was advised to withdraw the suit and ultimately the suit O.S.No.436 of 1977 was dismissed for non-prosecution (emphasis supplied). So, the plaintiff’s own case is that he took the decision to withdraw the suit and sometime thereafter, the suit was dismissed for non-prosecution. So, it is evident that the testator and D.W.1 were aware of the appellant’s decision before the Will was executed and the reference is only to that. Therefore, the eight months gap between the testator recording in his Will that the suit was agreed to be withdrawn and the date on which the suit was dismissed for default, is clearly expla ined by this statement made by the appellant himself. So, on this ground too, the Will cannot be disbelieved. The due execution and attestation and the mental condition of the testator have been spoken to by D.Ws.2 and 3 and therefore, the Will is upheld as genuine. The finding of the trial Court that the dismissal of the earlier suit would bar the present suit is not correct. The earlier suit was dismissed for default and not one on merits, and the suit being one for partition, the appellant cannot be barred from filing the present suit. However, since the Will has been upheld, the appellant is not entitled to claim a share in item Nos. 2 to 5 in the suit property. Therefore, the judgement and decree of the Trial Court is upheld. The appeal is dismissed. No costs.