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2022 DIGILAW 493 (MAD)

Sree Ramachandran v. Retnaswamy

2022-02-28

R.VIJAYAKUMAR

body2022
JUDGMENT : (Prayer: Second Appeal is filed under Section 100 of C.P.C, to set aside the judgment and decree dated 07.11.2017 passed in A.S.No.6 of 2017 on the file of the II Additional Subordinate Judge at Nagercoil reversing the judgment and decree dated 06.09.2016 passed in O.S.No.166 of 2014 on the file of the I Additional District Munsif Court, Nagercoil.) 1. The defendants 2 and 3 are the appellants. 2. The plaintiff filed O.S.No.166 of 2014 before the I Additional District Munsif, Nagercoil for declaration of title, possession and enjoyment over the suit schedule property and for demarcation of the plaint schedule property. The suit was dismissed by the trial Court. The plaintiff filed A.S.No.6 of 2017 before the II Additional Subordinate Court, Nagercoil. The learned Subordinate Judge allowed the appeal and decreed the suit as prayed for. As against the same, defendants 2 and 3 have filed the above second appeal. 3. The plaintiff had contended that originally the plaint schedule property and other properties were owned by one Narayanavadivu Nadachi. She had six children, three daughters by name, Nachiar, Chellammal and Lakshmi and three sons by name Retnaswamy (plaintiff), Gopalakrishnan and Thangavel. According to the plaintiff, the said Narayanavadivu Nadachi had executed a settlement deed in favour of his three daughters each for 30 cents out of 102 cents owned by her. The plaintiff further contended that the balance 12 cents was retained by Narayanavadivu Nadachi. According to the plaintiff, she has executed a registered Will on 27.01.1973 bequeathing four cents of land to her sons jointly namely Retnaswamy and Gopalakrishnan. The other son namely Thangavel died without leaving any issue. According to the plaintiff, the said Gopalakrishnan also died leaving without any issues and hence, the plaintiff become the absolute owner of the suit first item having 10 cents and suit second item having 2 cents of the property in Resurvey No.222/3. 4. The plaintiff further contended that the defendants 2 and 3 have filed O.S.No.306 of 2009 before the I Additional District Munsif Court, Nagercoil as against the plaintiff and others seeking partition of 12 cents of land which was not covered by three settlement deeds. The said suit was dismissed on 01.10.2013. The plaintiff further contended that the property in possession of the plaintiff required demarcation in view of certain dispute. The said suit was dismissed on 01.10.2013. The plaintiff further contended that the property in possession of the plaintiff required demarcation in view of certain dispute. Hence, he prayed for declaration of title, possession and also for demarcation of the plaint schedule property. 5. Though summons were served, the first defendant did not engage a counsel or appear person. The defendants 2 and 3 engaged a counsel, but they did not file a written statement. Hence, all the defendants were set exparte. The plaintiff's son examined as PW1 and Exhibits A1 to A11 were marked on the side of the plaintiff in the trial Court. 6. The trial Court found fault with the plaintiff for not entering into the box to give evidence. The trial court gave a finding that no medical records have been produced to show the illness of the plaintiff for not deposing before the Court. The trial court also found that Exhibit A1 Will is of the year 1973 and the plaintiff's son who was not born in the year 1973 has been examined as PW1. Hence, the trial Court rejected the evidence of PW1. 7. The trial Court also found that the plaintiff has claimed title and possession over the resurvey No. 222/3 based on Exhibits A6 to A9, but in those documents, the old survey No.1622 is not found. The trial Court also found that the plaintiff has not established his possession over the suit schedule property. Based upon the said findings, the trial Court dismissed the suit. 8. The First Appellate Court gave a finding that PW1 is none other than the son of the plaintiff and he is capable of giving evidence on behalf of his father. Even though, Exhibit A1 Will has not been proved in accordance with Section 68 of the Indian Evidence Act, the defendants have not filed any written statement disputing the genuineness and validity of Exhibit A1 Will. When the defendants have not disputed the Will, the plaintiff is not bound to follow the procedure contemplated under Section 68 of the Indian Evidence Act. The First Appellate Court relied upon the judgment of our High Court reported in 2010 3 LW 282 to arrive at a finding that when the projected Will is not disputed, it is not necessary to prove the Will by examining the attestors. 9. The First Appellate Court relied upon the judgment of our High Court reported in 2010 3 LW 282 to arrive at a finding that when the projected Will is not disputed, it is not necessary to prove the Will by examining the attestors. 9. The First Appellate Court further held that since Exhibit A1 was a joint bequeath, after the demise of Gopalakrishnan, the entire estate will fall into the hands of the plaintiff and the plaintiff will be the absolute owner of the suit schedule property. That apart, the First Appellate Court found that the suit for partition already filed by the defendants 2 and 3 in O.S.No.306 of 2009 has been dismissed. On the said findings, the First Appellate Court allowed the appeal and decreed the suit as prayed for. As against the same, the defendants 2 and 3 have filed the above second appeal. 10. The second appeal has been admitted on the following substantial question of law: “Whether the First Appellate Court was right in arriving at a finding that Exhibit A1 Will need not be proved as contemplated under Section 68 of Evidence Act on the ground that the defendants have remained exparte?” 11. The learned counsel for the appellant contended that admittedly the plaintiff has claimed title based upon Exhibit A1 Will dated 29.01.1973. The plaintiff has not produced the original, but only a registration copy has been produced as Exhibit A1. All the three defendants have remained exparte without filing a written statement. Though the Will has not been disputed by filing the written statement, the Will projected by the plaintiff ought to have been proved in accordance with Section 68 of the Indian Evidence Act. He further contended that any decree passed by the First Appellate Court should be construed only to be an exparte decree. The learned counsel for the appellants relied upon 2017 (3) Madras Weekly Notes (Civil) 258 to impress upon the Court that proof of a Will is mandatory irrespective of the fact whether the same is denied or not denied by other side. He further contended that unless and until the Will is proved as per Section 68 of the Indian Evidence Act, no right will flow in favour of the plaintiff. 12. He further contended that unless and until the Will is proved as per Section 68 of the Indian Evidence Act, no right will flow in favour of the plaintiff. 12. The learned counsel for the appellants further contended that the defendants may be given an opportunity to put forward their case in the suit for declaration of title and demarcation of the boundary. He further contended that O.S.No.306 of 2009 filed by the defendants 2 and 3 seeking partition was not dismissed on merits, but only on the ground of non joinder of necessary parties. The learned counsel further contended that the genuineness or validity of Exhibit A1 Will was not decided in the said suit. Hence, the dismissal of O.S.No.306 of 2009 will not bar the defendants from raising the issue of genuineness and validity of Exhibit A1 Will. The defendants may be given liberty to let in oral and documentary evidence to defend the present suit by remanding the matter to the trial Court. 13. Per contra, the learned counsel for the respondents contended that the defendants have chosen remained exparte in the suit out of their owner choice. Hence, the defendant cannot seek a second chance to defend the suit. Further, the learned counsel for the respondents contended that when the defendants have not filed a written statement disputing the Will, the question of proving the Will under Section 68 of the Indian Evidence Act does not arise. Only if the Will is disputed in the written statement and an issue is framed in that regard, the burden of proof will be upon the plaintiff to establish the genuineness and validity of Exhibit A1 Will. In the present case, when there are no pleadings objecting to the Will, the question of framing an issue or placing the burden upon the plaintiff as called for under Section 68 of the Indian Evidence Act does not arise. 14. The learned counsel for the respondents further contended that the defendants 2 and 3 have filed a suit for partition alleging that Narayanavadivu Nadachi had died intestate with regard to the balance of 12 cents. The plaintiff herein who was the defendants in the said suit projected the Exhibit A1 Will in the said suit. Only after consideration of the said Will, the partition suit filed by the defendants 2 and 3 came to be dismissed. The plaintiff herein who was the defendants in the said suit projected the Exhibit A1 Will in the said suit. Only after consideration of the said Will, the partition suit filed by the defendants 2 and 3 came to be dismissed. Hence, the defendants cannot re-agitate the issue of validity of the Will in the present suit for declaration of title. 15. The learned counsel for the respondents further contended that the First Appellate Court has rightly considered the deposition of PW1 and arrived at a finding that Exhibit A1 has been proved and granted a decree for declaration of title and demarcation of the boundaries. Without any pleadings, the defendants cannot be heard to challenge the judgment and decree of the First Appellate Court. Hence, he prayed for dismissal of the second appeal. 16. I have considered the submissions made on either side. 17. Admittedly, the plaintiff claims title on the basis of Exhibit A1 Will, said to have been executed by Narayanavadivu Nadachi. The plaintiff has chosen to produce only a certified copy of the Will. No doubt, the defendants have remained exparte in the suit, without even filing the written statement. The First Appellate Court had relied upon the judgment of our High Court reported in (2010) 3 LW 282 to arrive at a finding that when a Will is not disputed by any aggrieved party, an attestor need not be examined. However, the Hon'ble Supreme Court in Paragraph No.13 of the judgment reported in (2017) 1 SCC 257 has held as follows: “13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Succession Act, 1925. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free Will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement”. 18. In view of the judgment of the Hon'ble Supreme Court even in a case where the defendants had remained exparte without filing a written statement or has not specifically denied the execution of the Will in the written statement, the statutory burden is upon the plaintiff to prove the Will as per Section 68 of the Indian Evidence Act. The propounder of the Will cannot wriggle out of this burden just because the Will has not been disputed by other side. However, the propounder may be at liberty to invoke Sections 69 to 71 of the Indian Evidence Act, if the attesting witnesses are not available or the attesting witnesses deny the execution. 19. In view of the above said judgment of the Hon'ble Supreme Court, this Court is of the opinion that unless the plaintiff proves execution of Exhibit A1 Will as per Section 68 of the Indian Evidence Act, he cannot claim a decree for declaration of title. In the present case, defendants 2 and 3 have remained exparte for the reasons best known to them. The issue regarding the title of 12 cents that were not covered under the settlement deeds in favour of the daughter, is yet to be decided. The suit for partition filed by the defendants 2 and 3 in O.S.No.306 of 2009 has been dismissed only on the ground of non-joinder of necessary parties. The genuineness or validity of Exhibit A1 has not been decided in the said suit. Hence, it is all the more important for the plaintiff to prove Exhibit A1 Will in the present suit for getting a decree for declaration of title. 20. In view of the above said discussion, the substantial question of law is answered in favour of the appellants. The judgment and decree of the First Appellate Court is set aside. The suit is remanded back to the file of the trial Court. The defendants are at liberty to file a written statement. The plaintiff and the defendants will be entitled to let in oral and documentary evidence. The parties are directed to appear before the trial Court on 24.03.2022. The suit is remanded back to the file of the trial Court. The defendants are at liberty to file a written statement. The plaintiff and the defendants will be entitled to let in oral and documentary evidence. The parties are directed to appear before the trial Court on 24.03.2022. The defendants shall file their written statement on or before 20.04.2022. Any request for extension of time for filing of written statement, shall not be entertained. The trial of the said suit shall be completed on or before 31.12.2022. The second appeal is allowed and the suit is remanded to the trial Court for fresh disposal. No costs. Consequently, connected miscellaneous petition is closed.