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2022 DIGILAW 18 (MAD)

Krishnan v. Nayagam

2022-01-03

V.BHAVANI SUBBAROYAN

body2022
JUDGMENT : V. BHAVANI SUBBAROYAN, J. 1. The concurrent Judgments and decrees passed in O.S. No. 159 of 2009 by the Additional District Munsif Court, Srivilliputhur and in A.S. No. 63 of 2016, on the file of the Principal Subordinate Court, Srivilliputhur, are being challenged in the present Second Appeal. 2. The respondent/plaintiff has instituted a suit in O.S. No. 159 of 2009 on the file of the trial Court for the relief of declaration and recovery of possession, wherein, the present appellant has been shown as defendant. 3. The case of the plaintiff is that on 11.09.1981, one Mariappan's wife, Muthammal has purchased the suit property and on their own income, they constructed a house in the year 2005. At that time, they constructed two houses viz. one on the lower side and another on the upper side. On 20.07.2006, Mariappan sold the lower side house to one Subban's son Raman and the said Mariappan and Muthamal were in possession and enjoyment of the upper side house. The said Mariappan died on 16.02.2007 and Muthammal died on 01.09.2006 and the said Mariappan and Muthammal had no issues. Karuppiah was the brother of the said Muthammal. The said Karuppaih's son was the plaintiff's husband Ravi. The said Muthammal has no other legal heir than the plaintiff's husband. The said Ramar, who purchased the property in the year 2006, sold the property on 19.11.2008 in favour of the plaintiff. When the plaintiff wished to purchase the lower side house, the defendant also requested the said Ramar to sell the property in favour of him, but the plaintiff purchased the lower side of the house for a higher price and executed a sale deed. Hence, the defendant got enmity with the plaintiff and her husband. The house which is situated on the upper side was in a possession of the plaintiff's husband and he executed a sale deed in favour of the plaintiff. Hence, the plaintiff was in possession and enjoyment of the lower side of the house also and the defendant has no right over the suit property. When the defendant disturbed the peaceful possession and enjoyment of the plaintiff, she gave a complaint before the police station and the police have deposed that they have to approach the competent civil Court. Hence, the plaintiff was in possession and enjoyment of the lower side of the house also and the defendant has no right over the suit property. When the defendant disturbed the peaceful possession and enjoyment of the plaintiff, she gave a complaint before the police station and the police have deposed that they have to approach the competent civil Court. Hence, the plaintiff originally filed a suit for permanent injunction and later on, an amendment petition was filed seeking the relief of declaration and recovery of possession stating that the defendant on 19.04.2012 encroached upon the property and evicted the plaintiff. 4. The defendant had filed a written statement denying all the averments made in the plaint and submitted that the plaintiff's father Karuppiah was not the brother of Muthammal and admitted that the said Mariappan and Muthammal had no issues and they were in possession and enjoyment of the suit property. After the death of Mariappan, one Muniammal, who was the daughter of Mariappan's sister's daughter, was taking care of Muthammal and the said Muthammal, wife of Mariappan, had executed a Will on 08.08.2008 in favour of Muniammal. The said Muthammal died on 01.09.2008 and as per the Will, the said Muniammal was in possession and enjoyment of the suit property. He denied the statement made in the plaint that the Karuppiah's son Ravi was in possession and enjoyment of the suit property. Mariappan's own sister was also another Muthammal and suppressing the fact, the plaintiff has filed the suit. As per the Will, the said Muniammal was in possession and enjoyment of the suit property and she sold the property in favour of the defendant on 18.12.2008 and he was in possession and enjoyment of the suit property. On 19.04.2012, the defendant has encroached upon the suit property was denied and the claim for recovery of possession has been barred by limitation and prayed for dismissal of the suit. 5. Before the trial Court, on the side of the plaintiff, PW-1 and PW-2 were examined and Exs.A1 to A18 were marked. On the side of the defendant, DW-1 to DW-4 were examined and Exs.B.1 to B.6 were marked. 6. On the basis of the rival pleadings made on either side, the trial Court, after framing necessary issues and after evaluating both the oral and documentary evidence, had decreed the suit. 7. On the side of the defendant, DW-1 to DW-4 were examined and Exs.B.1 to B.6 were marked. 6. On the basis of the rival pleadings made on either side, the trial Court, after framing necessary issues and after evaluating both the oral and documentary evidence, had decreed the suit. 7. Aggrieved by the Judgment and decree passed by the trial Court, the defendant, as appellant, had filed an Appeal Suit in A.S. No. 63 of 2016. The first appellate Court, after hearing both sides and upon reappraising the evidence available on record, had dismissed the appeal and confirmed the Judgment and decree passed by the trial Court. 8. Challenging the said concurrent Judgments and decrees passed by the Courts below, the present Second Appeal has been preferred at the instance of the defendant, as appellant. 9. The learned counsel appearing for the appellant/defendant would submit that the Courts below have failed to consider Ex.A.3-sale deed and the same was executed by one Muthammal in favour of Mariappan and the suit schedule property differs. The Courts below have failed to consider that Mariappan and Muthammal have no legal heirs. The Courts below have failed to consider that after the demise of Muthammal's husband, one Muniammal, who is the sister's daughter of the said Mariappan, was taking care the said Muthammal and to that effect, the said Muthammal had executed a Will, dated 08.08.2008 in favour of the said Muniammal. After the demise of Muthammal, the said Muniammal was in possession and enjoyment of the suit property. The Courts below have failed to consider that the defendant is the bona-fide purchaser from Muniammal. The Courts below have failed to consider that the plaintiff has not pleaded that the said Muthammal died intestate. On 08.08.2008, the said Muthammal, wife of Mariappan, had executed a Will in favour of Muthammal. The Courts below have failed to consider Ex.B.1-Will. 10. The Courts below have failed to consider that the defendant is the bona-fide purchaser from Muniammal. The Courts below have failed to consider that the plaintiff has not pleaded that the said Muthammal died intestate. On 08.08.2008, the said Muthammal, wife of Mariappan, had executed a Will in favour of Muthammal. The Courts below have failed to consider Ex.B.1-Will. 10. The learned counsel appearing for the appellant/defendant further submitted that the date of purchasing of the stamp papers was not at all considered, as it is the common usage that if the stamp papers are not sold they will sell it on the subsequent dates which is practically happening and the same was not considered by the trial Court and small discrepancies and mistakes found in the Will ought not to have been considered by the Courts below and totally the Courts below have rejected the claim made by the defendant. As the plaintiff has not proved the case that the said document is a forged one by sending the admitted signature to the handwriting expert and that being the case the Courts below have not weighed the said evidence as the claim of the plaintiff is false has not been considered by the trial Court and prayed for allowing the Second Appeal. 11. The learned counsel appearing for the respondent/plaintiff would submit that both the Courts below have correctly decreed the suit and prayed for dismissal of the Second Appeal. 12. Heard the learned counsel for the appellant and the learned counsel for the respondent and also perused the records carefully. 13. It is the case of the plaintiff that on 11.09.1981, one Mariappan's wife, Muthammal purchased the suit property and on their own income, constructed a house in the year 2005. At that time, they constructed two houses viz. one on the lower side and another on the upper side. On 20.07.2006, Mariappan sold the lower side house to one Subban's son Raman and the said Mariappan and Muthamal was in possession and enjoyment of the upper side. The said Mariappan died on 16.02.2007 and Muthammal died on 01.09.2006 and the said Mariappan and Muthammal had no issues. Karuppiah was the brother of the said Muthammal. The said Karuppaih's son was the plaintiff's husband Ravi. The said Muthammal has no other legal heir than the plaintiff's husband. The said Mariappan died on 16.02.2007 and Muthammal died on 01.09.2006 and the said Mariappan and Muthammal had no issues. Karuppiah was the brother of the said Muthammal. The said Karuppaih's son was the plaintiff's husband Ravi. The said Muthammal has no other legal heir than the plaintiff's husband. The said Ramar, who purchased the property in the year 2006, sold the property on 19.11.2008 in favour of the plaintiff and she was in possession and enjoyment of the suit property and the defendant has no right over the suit property. 14. It is the case of the defendant that the said Mariappan and Muthammal had no issues and they were in possession and enjoyment of the suit property. After the death of Mariappan, one Muniammal, who was the daughter of Mariappan's sister's daughter, was taking care of Muthammal and the said Muthammal executed a Will on 08.08.2008 in favour of Muniammal. The said Muthammal died on 01.09.2008 and as per the Will, the said Muniammal was in possession and enjoyment of the suit property. He denied the statement made in the plaint that the Karuppiah's son Ravi was never in possession and enjoyment of the suit property. Mariappan's own sister was Muthammal and suppressing the fact, the plaintiff has filed the suit. As per the Will, the said Muniammal was in possession and enjoyment of the suit property and she sold the property in favour of the defendant on 18.12.2008 and he was in possession and enjoyment of the suit property. 15. At the time of executing the Will, the said Muthammal was in good health and state of mind and she had genuinely on her own will and volition written the Will has to be proved by the defendant. On the side of the defendant, Ex.B.1-Will was marked and one Subramanian, who signed in the Will as witness, was examined as DW-2, one Radhakrishnan was examined as DW-3 and one Rajendran, who drafted the Will as an Advocate, was examined as DW-4. On the side of the defendant, Ex.B.1-Will was marked and one Subramanian, who signed in the Will as witness, was examined as DW-2, one Radhakrishnan was examined as DW-3 and one Rajendran, who drafted the Will as an Advocate, was examined as DW-4. DW-2 in his chief examination has stated that on 08.08.2008, the said Muthammal in good state of mind had executed an unregistered Will and the said Will was drafted by Rajendran-DW-4 and after that, he read over the same to the said Muthammal and then she signed the same in each page in the presence of DW-2 and DW-3 and later on, DW-2 also signed in the same as a witness, was his deposition. The said Radhakrishnan-PW-3 was also examined. In his chief examination, he has stated that he was residing in Sethur Village and the said Muthammal was known to him and on 08.08.2008, with good health and state of mind, she executed an unregistered Will on that day which was prepared by one Advocate Rajendran and only after reading the same, she has affixed her left hand thumb impression and later on, she has signed the same, but the Advocate who has drafted the said Will, has deposed that Muthammal was taken care of by Mariappan's sister's daughter Muniammal and then she executed a Will in favour of Muniammal and he only drafted the same and she has affixed the left hand thumb impression in all the pages and later on, DW-2 and DW-3, who were signed as witnesses and accordingly, after everyone signed, the Advocate, who had drafted the Will, has affixed the stamp in the same. 16. On going through the materials available on record, it is seen that the Will was executed on 08.08.2008 and the documents were purchased on 05.08.2008 and DW-2 in his cross-examination has stated that he was not aware of the fact that on whose name the document was purchased and when the document was purchased and there was some discrepancy in the evidence of DW-2. DW-2 in his cross-examination has stated that on 08.08.2008, on the date when they tried to execute a sale deed only, the Will was also executed and there was a contradictory statement regarding the manner of execution of the Will, which was also not a registered one. DW-2 in his cross-examination has stated that on 08.08.2008, on the date when they tried to execute a sale deed only, the Will was also executed and there was a contradictory statement regarding the manner of execution of the Will, which was also not a registered one. When contradictory statements have been made by DW-1, DW-2 and DW-3 regarding the purchase of the stamp paper, the affixing of signature or the thumb impression, the first Appellate Court had analysed all these aspects and come to the conclusion that if there was a forged Will has been executed by an Advocate, he need not execute the thumb impression and they should have signed in the Will and the plaintiff has not proved that the thumb impression was that of Muthammal and she has not sought for sending the same to the handwriting expert or Forensic Department to prove that the signature or thumb impression found in the document do not belong to Muthammal. Surprisingly, the first Appellate Court has come to the conclusion that the thumb impression is that of the said Muthammal has been admitted by the first Appellate Court and come to the conclusion that the same is a genuine one. However, the first Appellate Court compared the evidence of DW-1 and DW-2, wherein DW-2 has admitted that Ex.A.4-sale deed and Ex.B.1- Will were executed on the same day at the time of cross-examination and it was a leading question and accordingly, the witness also agreed the same and that will not prove whether the said document was a forged one and the doubt cannot be raised by the plaintiff. 17. When the first Appellate Court has accepted the document as a genuine one and in the penultimate paragraph, the first Appellate Court has raised a question that the defendant has not produced any evidence to prove that the said Muthammal's husband Mariappan had any sister as Muthammal and the same was not proved by any other evidence, except the interested witnesses. Further, he has not examined the said Muthammal, the sister of Mariappan and also not examined any of the relatives of the said Muniammal. When he has not proved that the said Muthammal was the sister of Mariappan and the said Muthammal had executed a Will also creates a doubt and suspicion in the circumstances on which the Will has been created. When he has not proved that the said Muthammal was the sister of Mariappan and the said Muthammal had executed a Will also creates a doubt and suspicion in the circumstances on which the Will has been created. The said Muthammal is residing at Sethur and Muniammal is residing at Rajapalayam, which is 10 kms away and Muniammal came and stayed with Muthammal was also not proved by her that she was taking care of Muthammal. When Muthammal died only in Sethur and that being the case, under what circumstances the said Muniammal has bequeathed the property under the Will and there is a cloud on the Will in suspicious circumstances and the same cannot be accepted as genuine. 18. The plaintiff has proved her right by examining the community head as PW-2, who had submitted that Mariappan and his wife did not have any children and Muthammal husband's relatives were not available and Muthammal and Karuppiah are brother and sister and Karuppiah's son is the plaintiff's husband Ravi and in the cross-examination, he has denied that Muthammal had no other legal heir. Further, PW-2, in his cross-examination, has denied the suggestion that other than Karuppiah, there were no other brothers and sisters like Muthammal, Petchi, Sundaram, Palani and Raman and according to his knowledge, there was no such persons. Based on the oral submission made by the community head, the same has been accepted and the defendant had also raised a question that the said Muthammal had Karuppiah and other brothers and a proof was given by the plaintiff that there was a person known as Karuppiah, who is brother of Muthammal, is available and in the absence of any other evidence produced by the defendant to prove that Mariappan had a sister and the sister's daughter was taking care of Muthammal. The first Appellate Court has rightly come to the conclusion that when the defendant failed to prove that they are the legal heirs of Mariappan and it has been proved that the said Muthammal after the death of her husband had inherited the property and her brother Karuppiah's son, who inherited the property, through the said rights the plaintiff was given the property by way of a settlement by the said Ravi. The first Appellate Court has declared that the suit property belongs to the plaintiff and She has clearly proved her case on the basis of preponderance of probabilities, the same should be analysed. 19. Ex.B.1 is a Will which has not been proved beyond doubt that the same has been executed by Muthammal. As per the averment of the defendant, if Muthammal has written the Will, the Will has to be proved. When there is no proper and cogent evidence given by a person, who has drafted the Will and the persons who have signed the same as witnesses, the Courts below have clearly considered the same and ignored Ex.B.1-Will. The Will need not be registered and it is only optional, but the Will has to be proved by letting in appropriate evidence that the same has been executed by the executor and the contents must have been read out to the said persons and they should have read out the same or understood the same and signed in the same, but here in this case, the defendant was not in a position to say where it was executed and there was contradiction in the evidence given by the attesting witnesses. It is also seen that within a short period, the said Muthammal had died. At one place, the defendant himself has admitted that the Will and the sale deed has been executed in favour of the defendant on the very same day and later on, they cannot turn around and state that the evidence has to be taken as a whole and it is a leading question. When the defendant has filed the Will, to substantiate his claim, it is his duty to prove the genuinity through the Will and he cannot ask the plaintiff to disprove the Will. All these are factual in nature and this Court need not indulge in the well considered Judgments and Decrees passed by the Courts below. The plaintiff had a better case than the defendant and the defendant who was claiming right through the Will has not proved the genuineness of the Will in a proper perspective. That being the case, the plaintiff has made out a case and the defendant has failed to prove the same. 20. The plaintiff had a better case than the defendant and the defendant who was claiming right through the Will has not proved the genuineness of the Will in a proper perspective. That being the case, the plaintiff has made out a case and the defendant has failed to prove the same. 20. For the reasons aforesaid, this Court is of the considered view that no substantial questions of law has been made out by the appellant/plaintiff to interfere with the well considered judgment and decree rendered by the Courts below and accordingly, the Second Appeal fails and the same stands dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.