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2017 DIGILAW 2781 (MAD)

R. Santhi v. Dhanalakshmi

2017-08-21

M.M.SUNDRESH, N.SATHISH KUMAR

body2017
JUDGMENT : N. Sathish Kumar, J. Both appeals came to be filed as against the judgment and decree passed in O.S.No.111 of 1995. A.S.No.767 of 2004 has been filed by the plaintiff and A.S.No.1273 of 2003 has been filed by the fourth defendant. Since both appeals are arising out of the same judgment, we are inclined to dispose both the appeals in a common judgment. 2. The plaintiff and defendants 2 to 5 are the children of one Kuppusamy Pillai. The first defendant is the wife of the Kuppusamy Pillai. Kuppusamy Pillai died intestate leaving behind the defendants 1 to 5 and they succeeded the suit property. The plaintiff is entitled to 1/6th share. Therefore, she issued a legal notice on 11.11.1994. The second defendant issued a reply notice dated 21.12.1994 with false averments alleging that Kuppusamy Pillai left the Will. Kuppusamy Pillai never executed any Will during his life time. Similarly Karai Olai is created one. Therefore, the plaintiff filed the suit praying for preliminary decree declaring the right in the properties. 3. The defendants 1 to 3 submitted that Kuppusamy Pillai prior to his death had executed a Will dated 06.04.1986 while he was in a sound disposing state of mind. The plaintiff and her sisters are not entitled to any share in the suit property. After the death of the Kuppusamy Pillai, the third defendant had exclusively discharged the debt of Rs.54,000/- and another sum of Rs.1,50,000/- incurred by the Kuppusamy Pillai. Subsequent to the said will, the defendants 1 to 3 orally divided the properties in pursuance of the terms of the said will and the same is evidenced by a Karai Olai, dated 17.09.1990 and hence prayed for dismissal of the suit. 4. It is the case of the defendants 4 and 5 that they are also entitled to 1/6th share in the suit properties. Besides the suit properties, Bank deposits and immovable properties are not included in the suit. The defendants 7 & 9 filed a statement stating that the Kuppusamy Pillai left the Will. The plaintiff is not in possession of the property. She is also aware of the Will executed by her father. Similarly except Door No.44 and 45 other properties mentioned in item No.1 were not available for partition. 5. Based on the respective pleadings of the parties the following issues are framed by the trial Court. The plaintiff is not in possession of the property. She is also aware of the Will executed by her father. Similarly except Door No.44 and 45 other properties mentioned in item No.1 were not available for partition. 5. Based on the respective pleadings of the parties the following issues are framed by the trial Court. “(i) Will dated 06.04.1986 executed by the Kuppusamy Pillai is true and valid? (ii) Karai Olai dated 17.09.1990 is true or not? (iii) Whether the suit is barred for oral partition and plaintiff is entitled to 1/6th share (iv) Court fee paid by the plaintiff is correct?” 6. On the side of the plaintiff one Ramachandran, who is the husband of the plaintiff, was examined as P.W.1 and marked 9 documents as Ex.A1 to Ex.A9 and on the side of the defendants 5 witnesses were examined as D.Ws.1 to 5 and marked three documents as Ex.B1 to Ex.B3. 7. Based on the evidence and materials available on record, the learned trial judge dismissed the suit filed by the plaintiff for partition. Aggrieved over the same, these appeals came to be filed by the plaintiff and the fourth defendant. 8. The learned counsel appearing for the appellant in both appeals submitted that the learned trial judge having found that the Will propounded by the defendants has not been established as per law and ought not to have given importance to the so-called unregistered partition document namely Karai Olai. It is the case of the defendants that they partitioned the properties only on the basis of the Will. Therefore, once will itself is not established, the trial Court giving importance to the Karai Olai, is not according to law. Hence, prayed for allowing the appeals. 9. The learned counsel appearing for the respondents would submit that the trial Court has failed to appreciate the evidence properly. Infact, the scribe has been examined as one of the attesting witness. He is not only the attesting witness but also scribe. He has clearly spoken about the execution of the Will by Kuppusamy Pillai. Once the will has been proved, when there is no suspicious circumstances attached to the Will, the trial Court ought not to have disbelieved the will. However, it is the contention of the counsel that the Karai Olai also clearly established on record. The trial court taking into consideration of the same, dismissed the suit. Once the will has been proved, when there is no suspicious circumstances attached to the Will, the trial Court ought not to have disbelieved the will. However, it is the contention of the counsel that the Karai Olai also clearly established on record. The trial court taking into consideration of the same, dismissed the suit. The plaintiff is never in possession of the property. Therefore, the Court fee paid is also not correct and hence, prayed for dismissal of the appeal. 10. Now the points arises for consideration in the appeal is whether the Will, dated 06.04.1986 said to have been executed by the Kuppusamy Pillai is true and valid. ii. Whether the defendants can non-suit the plaintiff on the ground of unregistered partition namely Karai Olai based on the alleged Will, dated 06.04.1986 iii. to what relief. 11. It is an undisputed fact that Kuppusamy Pillai had three daughters and two sons, who are the plaintiffs and defendants herein. The first defendant herein is the widow of the Kuppusamy Pillai. One of the daughter filed the suit for partition. The defendants 2 and 3 have propounded the Will Ex.P2 claiming that the entire properties have been bequeathed by their father. Though it is also pleaded that some properties have not been included in the suit, but the defendants has not produced definite evidence as to nature of the properties omitted to be claimed in the suit. 12. In the absence of definite evidence mere assertion in the pleadings about the partial partition cannot be pressed into service. The defendants 1 and 3 propounded the Will Ex.B2. Ex.B2 said to be the last will and testament of the Kuppusamy Pillai. On a careful perusal of the Ex.B2 we are not inclined to accept the contention of the learned counsel for the appellant that the Ex.B2 has been legally proved. To make the Will as admissible evidence. It must be established by the propounder that the will has been executed by the testator and attested by the two or more witnesses. The execution and attestation are distinct acts both are to be proved to make the will valid under law. Further examination of attesting witnesses as contemplates under Section 68 of Indian Evidence Act is mandatory to prove the will. 13. The execution and attestation are distinct acts both are to be proved to make the will valid under law. Further examination of attesting witnesses as contemplates under Section 68 of Indian Evidence Act is mandatory to prove the will. 13. When attesting witnesses are not available will can be proved by resorting procedures as set out in Section 69 of the Indian Evidence Act. Only when the attesting witnesses are not available then the propounder can take recourse to Section 69 of the Indian Evidence Act. But the evidence on record does not establish the factum of alleged non availability of the attesting witnesses. Therefore, without proving the will in the manner known to law, mere statement of the defendants, who are claiming the right based on such Will, is not sufficient to believe the document as a genuine Will of the testator. Ex.B2 was written in the white paper and the witnesses signature has not been found. At any event, the attesting witnesses signature and executor signature has not been identified as required under 69 of the Indian Evidence Act. Further, whether scribe was a attesting witness or not, is doubtful in this case. The manner in which the name of the scribe was written in the document in a different ink itself gives an inference that the particular aspect has been inserted at later point of time. Hence, we are not inclined to accept the Ex.B2 as a genuine will left by the Kuppusamy Pillai. 14. The evidence of the D.W.1 also been clearly shows that the property was enjoyed by all the sons and daughters of the Kuppusamy Pillai. Further, she has categorically stated in her evidence that there was no necessity whatsoever arose for her husband during his life time to execute the will. Being the widow of the Kuppusamy Pillai her evidence in that aspect cannot be ignored altogether. Her evidence infact strengthens the contention of the plaintiff that the Will is not true and genuine. Infact, it has been result of creation at later point of time. Hence, Ex.B2 cannot be given importance in the eye of law in the absence of proof under Sections 68 and 69 of the Indian Evidence Act coupled with the Section 63(c) of the Indian Succession Act. 15. It is further to be noted that the testator allegedly died in the year 1986. Hence, Ex.B2 cannot be given importance in the eye of law in the absence of proof under Sections 68 and 69 of the Indian Evidence Act coupled with the Section 63(c) of the Indian Succession Act. 15. It is further to be noted that the testator allegedly died in the year 1986. The beneficiary of the Will have not taken steps to give effect to the will, immediately no mutation whatsoever taken place in respect of the property. The above facts and conduct of the defendants also create a serious doubt about the Ex.B2. The introduction of the Will with inordinate delay is also one of the circumstances, which leads to doubt about the Will. D.W.3 was examined to show as if he was a attesting witness. As already discussed in his evidence cannot be relied upon since his name was found in the different ink. It is also one of the circumstances, which infact go against the will. 16. Be that as it may, when his evidence carefully scanned, his evidence itself is suffice to hold that the will is nothing but concocted one, only for the purpose of the case. In the chief examination D.W.3 has stated that while Kuppusamy Pillai writing the will, he has seen and signed the will and Kuppusamy Pillai also seen him signing as witness. Taking into consideration of the above evidence, the evidence itself is not sufficient to prove the Will in view of Section 63(c) of the Indian Succession Act. As per Section 63(c) of the Indian Succession Act not only execution but also attestation to be proved in the manner known to law. 17. The evidence of D.W.3 does not prove neither execution nor attestation as contemplated under Section 63(c) of the Indian Succession Act. In the cross-examination D.W.3 has stated as if other attesting witnesses signed in his presence in the Will, whereas in Ex.B2 signature of attesting witness not found. Therefore, evidence of D.W.3 seeing the attesting witnesses signing in his presence is also one of the strong suspicious circumstances attached to Ex.B2 will. 18. Hence, we are not inclined to accept Ex.B2 and held that Ex.B2 has not been proved in the manner known to law. Therefore, evidence of D.W.3 seeing the attesting witnesses signing in his presence is also one of the strong suspicious circumstances attached to Ex.B2 will. 18. Hence, we are not inclined to accept Ex.B2 and held that Ex.B2 has not been proved in the manner known to law. When a will itself has not been established legally, the learned trial court giving undue importance to the alleged partition deed, under which D.Ws.1 and 3 partitioned certain properties between themselves, is not according to law. Ex.B1 Karai Olai carefully seen nothing but a unregistered partition deed between the two sons of the Kuppusamy Pillai based on the alleged Will, dated 06.04.1986. As stated above, the Will dated 06.04.1986 itself is not proved in the manner known to law. Therefore, two sons alone dividing the properties cannot be possible. Ex.B1 show the division of the properties in presentee. Any partition dividing the properties in presentee, require a registration since it creates right in the properties. Therefore, this documents Karai Olai is hit under Section 17 of Indian Registration Act. Hence, Ex.B1 cannot be looked into for any other purpose in the eye of law. 19. In view of the discussion held that the plaintiff being the daughter certainly entitled to 1/6th share. The evidence of the D.W.1 clearly shows that the property was in joint enjoyment of all the daughters and sons of the Kuppusamy Pillai. Even assuming that the plaintiff is out of possession that cannot be a ground to non suit the plaintiff, since the possession one co-owner is a deemed possession of other co-owner, always deemed to be in joint possession, as there was no plea of ouster established as against the plaintiff. Therefore, we are of the view that Court fee paid by the plaintiff is also in accordance with law. Accordingly, both the appeals are allowed and the decree and judgment of the trial court dismissing the suit is hereby set aside. Preliminary decree is passed for dividing said properties into six equal shares and allot 1/6th share each to appellant in A.S.No.767 of 2004 and 1/6th share to appellant in A.S.No.1273 of 2003. No costs.