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2021 DIGILAW 163 (MAD)

D. Francis v. Anthoni Kurus

2021-01-11

N.SATHISH KUMAR

body2021
JUDGMENT : N. SATHISH KUMAR, J. 1. Aggrieved over the dismissal of the suit in O.S. No. 156 of 1989 in respect of T.S. No. 5363/1B, for an extent of 5280 sq. ft. the present appeal came to be filed. 2. The brief facts leading to the filing of this appeal are as follows: 2.1. The plaintiff and defendants 1 and 2 are the sons of one Dawood. The defendants 3 to 5 and one Philomina are all the daughters of said Dawood. The 6th defendant is the husband of Philomina. Defendants 7 to 10 are the sons of Philomina and defendants 11 to 14 are the daughters of said Philomina. The 15th defendant has no right whatsoever in the suit property. The first defendant in collusion with the 15th defendant instigated the 15th defendant to file the suit in O.S. No. 160 of 1984. 2.2. In the above suit, the 15th defendant propounded the Will said to have been executed by Dawood, father of the plaintiff in respect of one item of the suit property. In the above suit, the plaintiff and defendants 1 to 5 were not made as parties. The said suit was decreed in favour of the 15th defendant. The Will propounded in the above suit is fabricated and never executed by Dawood, while he was in sound state of mind. In fact, the said Dawood was affected by paralysis and has no mental capacity to execute the Will. Based on the above decree, the 15th defendant is trying to enter into the possession of the property. The 15th defendant has no right whatsoever in respect of the suit property. Therefore, the plaintiff and defendants 1 to 5 have each entitled to 1/7 share in the suit property. 2.3. The third defendant filed a written statement and the defendants 2, 4 and 5 have adopted the same. It is their contention that the suit property is absolutely belonged to the father, Dawood. After his death, the plaintiff and defendants 1 to 14 are in joint possession of the property. The 15th defendant has no right whatsoever in the suit property. The decree and judgment in O.S. No. 160 of 1984 is not binding on the plaintiff. The Will is fabricated. 2.4. The 15th defendant has filed a written statement admitting that the suit property is belonged to late Dawood. The 15th defendant has no right whatsoever in the suit property. The decree and judgment in O.S. No. 160 of 1984 is not binding on the plaintiff. The Will is fabricated. 2.4. The 15th defendant has filed a written statement admitting that the suit property is belonged to late Dawood. The plaintiffs, defendants 1 and 2 are the sons of Dawood and they did not take care of the said Dawood. The plaintiff and other defendants has not looked after the first defendant and his wife, Sainabu. Therefore, his grandfather, late Dawood bequeathed the property in T.S. No. 5363/1B including the house property in favour of the 15th defendant, on 05.01.1982. After the death of Dawood, the Will came into force and the Will was known to every other legal representatives. 2.5. The first defendant had driven out the 15th defendant and his mother and threatened them to usurp the property and thereby, the 15th defendant had filed the suit in O.S. No. 160 of 1984 against the first defendant and others. The above suit has been decreed in favour of the 15th defendant. The above judgment and decree has reached finality. Therefore, the plaintiff and others have no right whatsoever in respect of the property in T.S. No. 5363/1B. The plaintiff and others were aware of the Will. Therefore, they are not entitled to any property and prays for dismissal of the suit. 2.6. Based on the above pleadings, the trial Court has framed the following issues: "(1) Whether the Will, dated 05.01.1982 executed by Dawood in favour of the 15th defendant is true and valid? (2) Whether the suit in O.S. No. 160 of 1984 on the file of the Subordinate Court, Pudukottai, was filed in collusion? (3) Whether the decree and judgment in O.S. No. 160 of 1984 is binding on the defendants 2 to 5 and the plaintiff in the suit property? (4) Whether there was a marriage between the first defendant and one Sainabu Amma? (5) Whether the suit property is liable for partition? (5) What relief, the plaintiff is entitled to?" 2.7. On the side of the plaintiff, the plaintiff was examined as PW-1 and Ex-A1 to Ex-A3 were marked. On the side of the defendants, DW-1 to DW-3 were examined and Ex-B1 to Ex-B16 were marked. 2.8. (5) Whether the suit property is liable for partition? (5) What relief, the plaintiff is entitled to?" 2.7. On the side of the plaintiff, the plaintiff was examined as PW-1 and Ex-A1 to Ex-A3 were marked. On the side of the defendants, DW-1 to DW-3 were examined and Ex-B1 to Ex-B16 were marked. 2.8. On the basis of the evidence and materials, the trial Court granted the preliminary decree for 1/7 share in favour of the plaintiff, defendants 1 to 14 and dismissed the suit in respect of T.S. No. 5363/1B for an extent of 5280 sq. ft. As against which, the present appeal has been filed. 3. The learned Senior Counsel appearing for the appellants would contend that the parties are Christians and therefore, Indian Succession Act would apply. Though the 15th defendant claiming to be legitimate son born through the first defendant, the same has not been established. The evidence of DW-1, the mother of 15th defendant, itself clearly indicates that the alleged marriage has not been established and the birth of the 15th defendant to first defendant was also not been established. It is his contention that the so called Will, dated 05.01.1982 said to have been executed by Dawood, original owner of the suit property, has not been probated, which is mandatory under law at the relevant point of time. Therefore, the Will ought not to have been relied upon by the the trial Court in negativing the claim of the plaintiff. 4. It is his further contention that the Will is unregistered. The evidence and witnesses has also further indicate that the testator has suffered from serious ailments and he was paralysed. Therefore, the question of testator executing the Will in a sound disposal state of mind, itself is doubtful. It is the further contention of the learned Senior Counsel for the appellants that the 15th defendant said to have been filed a suit in O.S. No. 160 of 1984 against the first defendant, based on the said Will. The trial Court has relied upon the above judgment as against the defendants. Admittedly, the plaintiff and other defendants are not parties to the above suit. Hence, it is his contention that the decree and judgment in O.S. No. 160 of 1984 is not binding on the plaintiff and defendants 1 to 14. Whereas, the trial Court has simply relied upon the above judgment. 5. Admittedly, the plaintiff and other defendants are not parties to the above suit. Hence, it is his contention that the decree and judgment in O.S. No. 160 of 1984 is not binding on the plaintiff and defendants 1 to 14. Whereas, the trial Court has simply relied upon the above judgment. 5. That apart, it is his contention that the original Will has not been produced before this Court and only the certified copy of the Will was filed on the ground that the original Will filed before the trial Court in O.S. No. 160 of 1984 has already been destroyed. The said contention itself is highly improbable. It his contention that without original being available, the question of granting certified copy by the Court would not have arisen in this case and it is also doubtful. It is his further contention that though one of the attesting witnesses has not supported the alleged execution of Will, he has not been cross examined by the 15th defendant and other attesting witnesses do not satisfy the compliance of Section 63(c) of the Indian Succession Act and Section 68 of Indian Evidence Act. Hence, it is his contention that the plaintiff is entitled to share in T.S. No. 5363/1B. Hence, he prays for allowing this appeal. 6. Despite service of notice, none appeared on behalf of the respondents. In the light of the above submissions, now the points arising for consideration in this appeal are as follows: "(1) Whether the 15th defendant is the son of the first defendant? (2) Whether the judgment and decree in O.S. No. 160 of 1984 is binding on the plaintiff, defendants 2 to 14, who are not parties to the above proceedings? (3) Whether the Will, dated 05.01.1982 stated to have been executed by one Dawood is proved in a manner known to law? (4) To production of secondary evidence, whether the 15th respondent has complied with the provisions of Section 65 of the Indian Evidence Act? (5) To what other reliefs, the parties are entitled to? 7. The suit has been laid claiming share in the property owned by one Dawood. The relationship between the parties is not in dispute. The plaintiff, defendants 1 and 2 are sons and defendants 3 to 5 and one Philomina are daughters of Dawood. The 6th defendant is the husband of Philomina. 7. The suit has been laid claiming share in the property owned by one Dawood. The relationship between the parties is not in dispute. The plaintiff, defendants 1 and 2 are sons and defendants 3 to 5 and one Philomina are daughters of Dawood. The 6th defendant is the husband of Philomina. The defendants 7 to 10 are sons and defendants 11 to 14 are daughters of Philomina. These facts are not disputed by the parties to the suit. The 15th defendant claims to be the illegitimate son of the first defendant born through one Sainabu, who said to have been married the 1st defendant. The said Sainabu was examined as DW-1 before the trial Court. 8. In the issue No. 4 framed before the trial Court with regard to the marriage between the said Sainabu and the first defendant, after analysing the entire materials and documents, the trial Court has specifically held that the marriage between Sainabu and the first defendant has not been established, which has not been challenged by way of cross appeal or cross objection by the 15th defendant. The finding against the 15th defendant remains unchallenged. Be that as it may, the entire evidence of DW-1 was scanned. Except contending that she left the house of the 1st defendant, there is no evidence to show that the 15th defendant was born to the first defendant. 9. It is the main contention of the 15th defendant that Ex-B5, the alleged Will, dated 05.01.1982, has been executed by Dawood in favour of the 15th defendant. Based on which, he has filed a suit in O.S. No. 160 of 1984. Ex-B2, the copy of judgment in O.S. No. 160 of 1984, dated 30.04.1986, has been carefully scanned. The above suit has been filed against the first defendant and other tenants. He took a stand that the 15th defendant not born to first defendant and disputed the relationship also. In one of the issues that was framed in the above suit with regard to the so called Will, dated 05.01.1982, the trial Court in the above suit in O.S. No. 160 of 1984, has held that the Will is proved and found that the 15th defendant herein, who was the plaintiff in O.S. No. 160 of 1984, was born to the first defendant herein. The above judgment is also not challenged by the 1st defendant. The above judgment is also not challenged by the 1st defendant. The relationship between the first defendant and 15th defendant has been clearly held in the earlier suit in O.S. No. 160 of 1984. The above findings has not been challenged. Therefore, merely because, in the present suit, the trial Court has not specifically recorded a finding, as to whether the 15th defendant was born to first defendant, the same is not a ground for denying the relationship. Since both the Courts have already decided the nature of relationship between the 15th defendant and 1st defendant, this Court hold that the 15th defendant is born to first defendant and DW-1. Though the fact that the marriage between the 1st defendant and DW-1 is not established, the fact remains that the 15th defendant is born to the first defendant and DW-1. 10. It is to be noted that since the Will takes away the normal rights of succession of the persons, who has interest in the immovable property, ought to have been made as a party. All the persons, who have interest in the immovable property, normally to be made as a parties. Admittedly, except the first defendant herein, the other legal representatives of the original owner Dawood, were not made as parties to the suit in O.S. No. 160 of 1984. Therefore, the judgment and decree in O.S. No. 164 of 1984 is not binding on the plaintiff and defendants 2 to 14, since they are not parties to the suit. 11. It is also well settled that the judgment or decree passed in previous civil proceedings are relevant, if the proceedings are between the same parties and the relief is also same and the previous judgment will binding on the parties, as per Sections 40 and 42 of Indian Evidence Act, while deciding the nature of relief, the Court has to see whether all the parties, against whom the judgment sought to be obtained made parties in the previous case. Admittedly, in this case, the plaintiff and defendants 2 to 14 are not parties and therefore, the judgment is not binding on the plaintiff and defendants 2 to 4. The lower Court gave much importance to the judgment and decree in O.S. No. 160 of 1984 against the parties to the present suit is against the very fundamental principle of law. 12. The lower Court gave much importance to the judgment and decree in O.S. No. 160 of 1984 against the parties to the present suit is against the very fundamental principle of law. 12. In the light of the above, now it is seen that the Will, dated 05.01.1982 has been proved in the manner known to law, as against the other defendants. Admittedly, the plaintiff and other defendants are the original legal heir of deceased Dawood. The person, who claims to be legitimate son and taking benefit of the Will, has to prove the Will. He has to prove not only the Will, but also the testamentary capacity of the testator at the relevant point of time. It is to be noted that the testator was aged more than 80 years at the relevant point of time and not in a position to walk and suffered from serious ailments. In such view of the matter, the burden is always on the propounder, not only to prove the Will, but, also to establish the testamentary capacity of testator, who executed the Will. 13. It is the contention of the 15th defendant that the Will was executed in the presence of witnesses. It is to be noted that the Will was written in two white papers. The xerox copy of the Will, Ex-B5 makes it clear that there are four witnesses cited. It is to be noted that the Will was written by the document writer. There was no reason as to why it was written in a white papers. It is a common knowledge that whenever a Will was prepared by the document writer and scribe will type or write the Will legibly and a Will normally be typed or written legibly. Whereas, the Will produced in this case written on two white papers. In fact, it probabilise the theory of the plaintiff that the white papers have been misused. It is also relevant to note that one of attesting witnesses, who was examined on the side of the defendants, namely, DW-2, has not supported the Will and the attestation of the Will. He never spoke about the presence of DW-3, DW-2 in his evidence has stated that he was present while the Will was written in one Muthiah's house. 14. DW-2 though in his evidence has stated that while the document writer signing the document, the testator has seen DW-2. He never spoke about the presence of DW-3, DW-2 in his evidence has stated that he was present while the Will was written in one Muthiah's house. 14. DW-2 though in his evidence has stated that while the document writer signing the document, the testator has seen DW-2. His evidence does not indicate that other witness has seen the testator signing the document Whereas, one of the attesting witnesses, namely, DW-2 turned hostile. He has not been confronted nor cross examined by the first defendant. Further, the evidence of DW-2 would clearly indicate that he was also actively participated in preparing the Will and his participation is apparent from his evidence, in getting a Will from a person, who was aged about more than 80 years and he was also paralysed and suffered from ailments. 15. The evidence adduced on the side of the propounder is not dispelled the various suspicious circumstances attached to the Will, namely, the Will has been just written in the white paper. One of the witnesses has also not supported and the active participation of DW-2 is also one of the suspicious circumstances, which has not been dispelled. This suspicious is further forfeited the fact that the original Will has not seen the light of the day. 16. It is to be noted that the certified copy of the Will filed as Ex-B4 and xerox copy of the same was also filed as Ex-B5. The explanation was offered for filing the secondary evidence that the certified copy of the original Will filed in the earlier suit, namely O.S. No. 160 of 1984 was destroyed by the Court, therefore, the certified copy is filed. Such explanation, on careful perusal of the materials, is found to be false for the simple reason that the certified copy of the Will itself obtained in the year 1989. If the documents, which he relied upon were destroyed, the Court would not have issued the certified copy in the year 1989. Therefore, non filing of the original Will also creates serious doubt. Further, for filing the certified copy, the compliances under Section 65 of the Indian Evidence Act, have not been followed. Further it is to be noted that the parties are belong to the Christian, which is not in dispute. Therefore, non filing of the original Will also creates serious doubt. Further, for filing the certified copy, the compliances under Section 65 of the Indian Evidence Act, have not been followed. Further it is to be noted that the parties are belong to the Christian, which is not in dispute. Therefore, if at all, the Will sought to be enforced, as per the law stood prior to the amendment of the Act 26 of 2002, the Will ought to have been probated. Unless, the Will is probated, no right as legatee could be established in a Court of law. 17. For all the above ground also, the trial Court ought not to have upheld the Will. Accordingly, all the points are also answered and the appeal is allowed and the judgment and decree of the trial Court in O.S. No. 156 of 1989 in respect of T.S. No. 5363/1B is set aside. The plaintiff is entitled to 1/7 share in the suit property. The defendants 1 and 2 are each entitled to 1/7 share. The defendants 3 to 5 are each entitled to 1/7 share. The defendants 6 to 14 are together entitled to 1/7 share in the suit property. 18. Accordingly, this first appeal is allowed. No costs.