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2024 DIGILAW 226 (MAD)

Annapoorani v. K. S. Kanagarajan (Died)

2024-01-23

G.ARUL MURUGAN

body2024
JUDGMENT : G. ARUL MURUGAN, J. Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 21.12.2005 made in A.S. No. 29 of 2005 on the file of the Principal District Court Erode, reversing the judgment and decree dated 13.01.2005 made in O.S. No. 690 of 2000 on the file of the Second Additional Sub Court, Erode. 1. This Second Appeal is filed by the plaintiffs challenging the judgment and decree dated 21.12.2005 in A.S. No. 29 of 2005 on the file of the Principal District Court Erode, reversing the judgment and decree dated 13.01.2005 made in O.S. No. 690 of 2000 on the file of the Second Additional Sub Court, Erode. Respondents 2 to 5 herein are the defendants 2 to 5 and the respondents 6 to 8 are impleaded as legal heirs of the deceased 1st respondent. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. The brief facts in the plaint are as follows: The Plaintiffs and the 3rd defendant are the daughters and the 2nd defendant is the son of the first defendant and her late husband Sengottaian. Sengottaian died intestate on 10.03.2000 at Chithode, leaving behind the plaintiffs and the defendants 1 to 3 to succeed his estate. The defendants 4 and 5 are the tenants in the portions of the suit properties. 4. According to the plaintiffs, the 2 items of the suit properties are separate and self acquired properties of the said Sengottian. Pursuant to his death, the plaintiffs and the defendants 1 to 3 being the natural heirs are each entitled to 1/5th share in the suit properties as per the Hindu Succession Act. As the demand of the plaintiffs to partition the properties and allot two shares to them was not fruitful, they issued a legal notice on 10.04.2000 demanding for partition, but however, the 2nd defendant issued a reply notice dated 15.04.2000 with false claims and hence the suit is filed for partition and separate possession. 5. Further according to the plaintiffs, the 2nd defendant in his reply has stated that prior to the death of Sengottaian, he had executed the will in his favour on 09.03.2000 bequeathing both the items of the suit properties. 5. Further according to the plaintiffs, the 2nd defendant in his reply has stated that prior to the death of Sengottaian, he had executed the will in his favour on 09.03.2000 bequeathing both the items of the suit properties. The plaintiffs have alleged that Sengottaian could not have executed the will on 09.03.2000 with free will and volition, without coercion, threat and undue influence in a sound disposing stage of mind. Therefore, according to the plaintiffs any will executed just a day prior to death bequeathing the entire properties to the 2nd defendant excluding the daughters must be unnatural and suspicious one. 6. Brief facts in the written statement: The 1st defendant filed the written statement supporting the case of the plaintiffs and according to 1st defendant her husband died on 10.03.2000 leaving behind the plaintiffs and defendants 1 to 3 as legal heirs and are each entitled to 1/5th share in the suit properties. Further she had issued a lawyers notice on 19.04.2000 to the defendants 2, 4 and 5 demanding partition and for payment of her share of rights. 7. Controverting the suit, the 2nd defendant has filed a written statement. The 2nd defendant admitted that the suit properties are separate and self-acquired properties of his father Sengottaian. While his father was in sound disposing state of mind, out of his own free will and volition and without any coercion or undue influence had executed the registered will on 09.03.2000 bequeathing his properties in favour of his wife, the 1st defendant and the 2nd defendant. 8. According to the 2nd defendant, after the death of Sengottaian, as per the will, the property comprising a godown and a room was allotted to the 1st defendant for her own use and occupation and further godown had been leased out to the 5th defendant and the rents are paid to the 1st defendant for her livelihood and further the 1st defendant is residing in the room allotted to her by the testator. In respect of construction of toilet, the 1st defendant picked up a quarrel and lodged a complaint for demanding more money for her livelihood. But however, the 2nd defendant voluntarily consented for providing the facilities and he is now in enjoyment of the other property as per the testator’s will. 9. In respect of construction of toilet, the 1st defendant picked up a quarrel and lodged a complaint for demanding more money for her livelihood. But however, the 2nd defendant voluntarily consented for providing the facilities and he is now in enjoyment of the other property as per the testator’s will. 9. According to the 2nd defendant, the plaintiffs were married even prior to the year 1970 and living with their husbands and ousted from the suit properties and now they are well settled with their families. As per the registered will, the 2nd defendant has become the owner of the properties and the 1st defendant is in enjoyment and receiving the rents from the portion of the 1st item of the property and therefore the suit properties are not available for partition. 10. An additional written statement has been filed by the 2nd defendant stating that the 2nd item of the property was purchased out of the joint exertion and income of the 2nd defendant and his father, Sengottaian and it was treated as joint family property of both. Further, the 1st item of the suit property was also allotted to Sengottaian by virtue of a partition deed entered into between his brothers. Since the suit properties are ancestral joint family properties, the 2nd defendant has a 6/10th share and others share holders have a 1/10th share, in the event of the 2nd defendant failing to prove the will of the testator. 11. Evidences and Documents: Before the Trial Court, the 1st plaintiff examined herself as PW-1 and marked exhibits A.1 to A.3. On the side of the defendants, the 1st defendant was examined as DW-1, 2nd defendant was examined as DW-2 and two attestors of the will were examined as DW-3 and DW-4 and exhibits B.1 to B.10 have been marked. 12. The Trial Court on appreciation of the oral and documentary evidences disblieved the will in Ex.B3 and decreed the suit as prayed for. The Trial Court placing reliance on the evidence of DW-1 about the health condition of the testator and by observing that the attesting witnesses DW-3 and DW-4 are interested witnesses disbelieved the will and therefore held that the suit properties are available for partition and decreed the suit granting 1/5th share to the plaintiffs being the clause 1 legal heirs of deceased Sengottaian. Aggrieved by the judgment, the 2nd defendant filed appeal and the lower Appellate Court on appreciation of the evidence accepted the will as genuine and allowed the appeal setting aside the decree of the trial court. The lower Appellate Court, considering the evidence of DW-3 and DW-4 held that the will in Ex.B.3 is proved and has observed that the 2nd defendant dispelled all the suspicious circumstances and accepted the will as true and genuine. Aggrieved against the same, the plaintiffs are before this Court by way of the above second appeal. 13. This Court by order dated 26.07.2006 formulate the following substantial questions of law: “1. Whether the Will under consideration had been duly executed and the propounder of the Will had dispelled the suspicious circumstances surrounding the Will in the manner expected under law? 2. Whether the findings of the first appellate court based on the additional written statement filed by the 2nd defendant is bade in law especially when the leave to file additional written statement had been rejected by the trial court by an order dated 28.10.2004 in I.A. No. 166 of 2004?” Submissions of Counsel on either side: 14. The learned counsel for the appellants submitted that the recitals contained in Ex.B.1 partition deed clearly reveals that it is a joint family property of deceased Sengottaian, his brothers and father. The joint family properties have been partitioned and upon partition, the share allotted to deceased Sengottaian will be the separate property and nowhere in the partition deed, it is shown that the properties are ancestral properties. Further, in respect of item 2 of the suit properties which was purchased through Ex.B.2 sale deed dated 23.01.1974, it is prior to the partition deed in Ex.B.1. Further there is no oral or documentary evidence to prove that the item 1 had surplus income from the joint family property to purchase the 2nd item. Therefore, both items of the suit properties are the self acquired properties of the deceased Sengottaian. 15. The learned counsel for the appellants further submitted that Ex.B.3 will is bogus and not genuine. The 2nd defendant has not proved the genuineness of the will and due execution in compliance with the statutory requirements under Section 63 (c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act. 15. The learned counsel for the appellants further submitted that Ex.B.3 will is bogus and not genuine. The 2nd defendant has not proved the genuineness of the will and due execution in compliance with the statutory requirements under Section 63 (c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act. He further submits that the will requires no registration and mere registration of the will does not add any probative value and the propounder has to independently prove the will, which the 2nd defendant has miserably failed. According to the learned counsel, the testator was not in sound mind and health, and the same could be fortified from the evidence of testator’s wife DW-1 and the evidence has not been contradicted. Further, the disputed will came into existence on 09.03.2000 and the testator died on the very next day, i.e., on 10.03.2000 and the sudden death of the testator smells a rat. This fact coupled with the evidence of DW-1 amply proves that the will is fraudulent and created. 16. The learned counsel further argued that the other natural heirs including the plaintiffs have been excluded in the will and when the natural intestate succession is sought to be blocked by testamentary succession under Ex.B.3, the burden is very heavy on the 2nd defendant who is the propounder of the will. The learned counsel has further listed out the following factors as suspicious circumstances: “(a) The Testator was 84 years old at the time of execution of Ex.B.3 will and he died on the very next day of the execution. (b) Non examination of the scribe and the sub registrar who are the independent witnesses for the preparation and registration of the Will is a valid ground to discard the will. (c) Testator was not in good health condition as evident from the evidence of the 1st defendant (DW-1) and also the 2nd respondent (DW-2). It would lead to an inference that his mental condition was not good. (d) Unfair and unjust disposal of the property will be a suspicious circumstances. The testator has got three daughters and there is no valid reason for him to exclude all the daughters from succeeding the property. (e) At the time of execution of the Will in question, the testator was 84 years old and he was under the control of D2 as evident from his evidence. The testator has got three daughters and there is no valid reason for him to exclude all the daughters from succeeding the property. (e) At the time of execution of the Will in question, the testator was 84 years old and he was under the control of D2 as evident from his evidence. Thus, Ex.B3 came into existence under threat, coercion and undue influence. (f) The execution is in dispute, but no steps taken to get the opinion of a handwriting expert to compare the signature of the testator with his admitted signatures and thumb impression to clear the doubt. (g) DW-3 is none other than the brother of the testator with whom the beneficiary (D2) is also associated with. DW4 is the tenant in the suit premises. Their evidences have no value in the eye of law.” 17. The learned counsel contended that the propounder has failed to dispel the suspicious circumstances which was rightly disbelieved by the trial court but without proper analysis, the lower appellate court has erroneously set aside the decree which is perverse and sought for allowing the appeal. 18. In support of his arguments, the learned counsel for the appellants relied on the following decisions of the Hon’ble Supreme Court: 1. Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao and Others, (2006) 13 SCC 433 2. Adivekka and Others vs. Hanamavva Kom Venkatesh (Dead) by LRs. and Another, (2007) 7 SCC 91 3. Shivakumar and Others vs. Sharanabasappa and Others, (2021) 11 SCC 277 19. Per contra, the learned counsel for the respondents contended that from the perusal of the partition deed in Ex.B.1 it can be seen that the joint family properties had been partitioned by deceased Sengottaian along with his father and brothers, which itself shows that is is ancestral property. The mere usage of the word “joint family property” in the recitals cannot make those properties as separate property of Sengottaian on partition. Further, the learned counsel for the respondents argued that since at the time of purchase of the 2nd item of the property in Ex.B.2, the 2nd defendant was 33 years and he was contributing to the family and therefore by his joint exertion along with his father have purchased the 2nd item of the property and therefore it is a joint family property of the 2nd defendant along with his father. 20. 20. The learned counsel for the respondents further submitted that the deceased Sengottaian in a sound mind and on his own will and volition had taken his brother DW-3 and the tenant DW-4 along with two other persons and have executed the will in Ex.B.3. In fact, the beneficiary was not aware about the execution of the will and he was also not present in the house. It is natural that when the testator executed the will, he called for his known persons for execution. Ex.B.3 is the registered will and it has more credibility as it is registered before the registrar and further Ex.B.3 takes care of the interests of D.1 and the testator has expressed his mind that since his three daughters who got married a long time ago, have been well settled with their families and have been given sidhana at the time of marriage according to their status and after giving a life time interest in favour of his wife for residence and also for livelihood, he has bequeathed the property in favour of his only son, the 2nd defendant which is quite natural and cannot be doubted. 21. The learned counsel for the respondents further submits that both the witnesses DW-3 and DW-4 have clearly given evidence in respect of signing of the will by the testator, which was witnessed by them and they have also signed the will and the same is in due compliance of under Section 63 (c) of the Indian Succession Act, 1925. Further, among the four witnesses signed in the will DW-3 and DW-4, the attestors have given evidence clearly explaining about the execution of the will and registration and their evidences have not been discredited by the cross examination of the plaintiffs and thereby the will stands proved as contemplated under Section 68 of the Indian Evidence Act. 22. The learned counsel for the respondents submits that once the will has been proved in the manner known to law, the natural concomitant is that the suit properties are no longer available for partition. The same has been taken note of by the lower appellate court, and has rightly allowed the appeal which needs no interference at the hands of this court. In support of his arguments, the learned counsel relied on the following decisions: 1. Meenakshi Ammal (Dead) through LRs. vs. Chandrasekaran and Others, MANU/SC/0953/2004 2. The same has been taken note of by the lower appellate court, and has rightly allowed the appeal which needs no interference at the hands of this court. In support of his arguments, the learned counsel relied on the following decisions: 1. Meenakshi Ammal (Dead) through LRs. vs. Chandrasekaran and Others, MANU/SC/0953/2004 2. Sri Devi and Others vs. Jayaraja Shetty and Others, MANU/SC/0065/2005 3. Mahesh Kumar (Dead) by LRs. vs. Vinod Kumar, MANU/SC/0208/2012 4. Arshnoor Singh vs. Harpal Kaur and Others, MANU/SC/0864/2019 23. Heard the learned counsel for the appellants and the learned counsel for the respondents and gave my anxious consideration. 24. Analysis: The plaintiffs claim that the suit properties are the self acquired property of the deceased Sengottaian. The 2nd defendant also admitted that both items of the suit properties are self acquired property of his father. But there after the 2nd defendant by filing additional written statement claims that the 1st item of the suit property is ancestral property and the 2nd item of the suit property is a joint family property of himself and his father. The partition deed in Ex.B.1 shows that the deceased Sengottaian, along with his brothers and father, partitioned the joint family properties and item 1 of the suit schedule property has been allotted to the share of Sengottaian in Ex.B.1. On the partition of the joint family property, the share received by the deceased Sengottaian will have to be treated as his separate property and further the 2nd defendant has not led in any evidences to prove that it is an ancestral property. In fact, the appellate court has also come to the conclusion that the 1st item of the property is the joint family property. As far as the 2nd item of the suit property is concerned, it has been purchased by the deceased Sengottaian in Ex.B.2 and it has to be presumed to be his self acquired property and if at all, the 2nd defendant claims that the same was purchased by him along with his father, it is for him to prove the same. However, the 2nd defendant having failed to prove his claim, and the courts below have rightly arrived at a finding that the 2nd item of the suit property is the self acquired property of the deceased Sengottaian. 25. However, the 2nd defendant having failed to prove his claim, and the courts below have rightly arrived at a finding that the 2nd item of the suit property is the self acquired property of the deceased Sengottaian. 25. In view of the admission made by the 2nd defendant coupled with the documents, partitioned deed in Ex.B.1 and the sale deed in Ex.B.2, it can be safely concluded that the 1st item of the suit property is the separate property of deceased Sengottaian and the 2nd item of the suit property is the self acquired property of the deceased Sengottaian. As per the will in Ex.B.3 dated 09.03.2000, both items of the properties have been dealt with by the deceased Sengottaian in the will. Only if the will in Ex.B.3 is not accepted, then the suit properties will be available for partition and the plaintiffs will be entitled to the claim made by them. 26. As such, the pivotal issue now remains in the appeal is the probative value of Ex.B.3, Will executed by the deceased Sengottaian. The cursory perusal of the will in Ex.B.3 shows that the testator clearly and legibly signed in all the pages of the will. The testator took care and interest in respect of his wife, the 1st defendant in securing the place of residence, securing her livelihood in the form of collecting rents from the tenant by creating life time interest in favour of 1st defendant in a portion of the property mentioned in the 1st item of the will. Further the testator mentioned his three daughters in the will and clearly indicated that since they had been married a long time ago, i.e. 30 years ago, and that they had been given in marriage by giving sidhana and incurring expenditures according to the status in the society and all the three daughters are well settled in their lives with their families, they are excluded. Further, after giving life time interest in respect to the portion of the 1st item of the property in favour of his wife, the testator retained the other portion of the property to be in his possession and enjoyment and pursuant to his life time, he had bequeathed the same in favour of his only son, the 2nd defendant. Further, after giving life time interest in respect to the portion of the 1st item of the property in favour of his wife, the testator retained the other portion of the property to be in his possession and enjoyment and pursuant to his life time, he had bequeathed the same in favour of his only son, the 2nd defendant. Mere exclusion of some of the legal heirs in the will alone cannot be taken to be suspicious, particularly when the exclusion has been explained in the will. 27. The testator’s intention of providing residence and livelihood for his wife, the 1st defendant and giving acceptable reasons for excluding the daughters from making any provisions in the will and bequeathing the property in favour of his only son after his life time, is natural. 28. As for as the argument of the learned counsel for the appellants, that the testator died on the next day after executing the will Ex.B.3 and the death itself smells a rat, does not persuade this Court. The perusal of the plaint shows that even after the receipt of the reply notice from the 2nd defendant where the will has been disclosed, the plaintiffs have not said anything about the nature of the death of his father and it is stated that their father died on 10.03.2000, intestate leaving behind the plaintiffs and defendants 1 to 3 to succeed his estate. Further, the evidence of DW-2 clearly states that he was not present in the house on the day of execution of the will or even on the date of death of his father. In such circumstances, particularly when the plaintiffs themselves have not pleaded that there was something amiss in the death of their father, the argument advanced that the death of the deceased Sengottaian on the next day indicates that something is wrong cannot be accepted. 29. In so far as the claim of the plaintiffs that the deceased Sengottaian was not in sound mind, all that they relied on is the evidence of DW-1, their mother, who had said that on the date of death the testator was not conscious and was also behaving as if mentally unstable. 29. In so far as the claim of the plaintiffs that the deceased Sengottaian was not in sound mind, all that they relied on is the evidence of DW-1, their mother, who had said that on the date of death the testator was not conscious and was also behaving as if mentally unstable. Except this, the plaintiffs who allege that the will Ex.B.3 was not executed by free will but by force and coercion when he was not in a sound state of mind have failed to establish the same by producing any materials. Even, in respect of the evidence of DW-1 who supports the case of the plaintiffs, in the cross examination she has clearly stated that even prior to the death of the testator, she had left the house of her husband and was residing with her daughter, the 1st plaintiff and continued to reside there. Since the 1st defendant was not in the house of the deceased and was residing with his daughter, the evidence given by her that at the time of death, the deceased was behaving like a mentally disturbed person and was not in a conscious mind, cannot be accepted as she could not have witnessed the same. 30. The propounder of the will DW-2 has examined two attestors of the will DW-3 and DW-4. Even though, it is claimed that DW-3, being the brother of the deceased, is an interested witness, he is a person interested in the entire family of his brother, including the plaintiffs. Further, when the testator was executing the will, it is quite natural that he took his brother DW-3 along with DW-4 and other two witnesses for the execution of the will. DW-3 has clearly spoken that the attestor came to his house and took him for the purpose of executing the will and that on 09.03.2000 at 10.00 p.m. he went to Bhavani along with his brother and the testator dictated the contents of the will to the scribe, and after the will was prepared, DW-3 witnessed the attestor signing the will and thereafter he attested the will, along with DW-4 and the other two persons, and the same was presented for registration around 12.00 p.m. at the registrar’s office and the same was registered. DW-3 has also spoken about the sound mind and health of the testator at the time of the execution of the will. DW-3 has also spoken about the sound mind and health of the testator at the time of the execution of the will. 31. DW-4, the attestor to the will, who is the tenant in respect of one of the godowns of the suit property, has categorically deposed that the testator called him to come for the execution of the document and that he went there and witnessed the testator dictating the will to the scribe, which was then typed and signed by the testator, DW-3 attested the will and thereafter he attested along with two other witnesses, and thereafter document was presented for registration at the registrar’s office around 12.00 p.m. Even though DW-4 has deposed that the testator had some stomach health issues, he categorically submitted that the testator was in sound mind and health and he actively executed the will. 32. Even though it was argued by the learned counsel for the appellants that since the testator had worked as an employee with his brother for some time and his son, the beneficiary had also worked under him, the evidence of DW-3 is an interested witness and has to be disbelieved, this court is not persuaded by the submission. When the two attestors of the will, DW-3 and DW-4, have clearly spoken about the manner of execution of the will and their attestation and they have withstood the rigour of cross examination and the credibility of the witness has not been shaken by the cross examination of the plaintiffs, the lower appellate court has given a finding of fact that the will in EX.B.3 has been executed in accordance with Section 63 (c) of the Indian Succession Act, 1925 and the propounder of the will, by examining the attestors DW-3 and DW-4, has proved the execution as contemplated under Section 68 of the Indian Evidence Act. When the propounder has discharged his onus by dispelling all the suspicious circumstances and proved the will satisfying the conscience of the court, the onus shifted to the plaintiffs but they failed to prove the allegation of fraud and coercion. 33. The mere fact that the testator died on the next day alone cannot make the will suspicious when there is no contrary evidence or any pleadings on the side of the plaintiffs that there is something amiss about the death of the testator. From the evidence of DWs. 33. The mere fact that the testator died on the next day alone cannot make the will suspicious when there is no contrary evidence or any pleadings on the side of the plaintiffs that there is something amiss about the death of the testator. From the evidence of DWs. 2, 3 and 4, it is clear that the testator in a sound mind and health had executed the will Ex.B.3. As such the finding of the lower appellate court that the testator had executed the will on his own volition, bequeathing the suit item of the properties in favour of his son, the 2nd defendant, securing the interest of the 1st defendant for her residence and livelihood is based on the available materials and therefore well merited and not perverse. 34. In the judgment of the Hon’ble Supreme Court in Sivakumar case cited supra, while setting out the legal proportions in respect of proving of the will, it is held that the suspicious features must be “real, germane and valid” and not merely the “fantasy of the doubting mind.” Further, in that case, the several discrepancies in the will were taken into consideration and the court held that mere proving of execution and attestation cannot be taken to be the will as genuine. However, in the present case is concerned, the perusal of the will Ex.B.3 does not indicate or create any doubts or suspicion and further it is a registered will and the attestors DW-3 and DW-4 have given clear and cogent evidence in respect of execution and attestation of the will and proved as per the statutory requirement. The other decisions relied on by the appellant are not relevant for the facts of the present case. 35. The lower appellate Court has factually arrived at the finding that the will in Ex.B.2 is valid and accepted the will based on the evidences and documents. There is no illegality or perversity in the finding of fact arrived at by the lower appellate court, which requires the interference of this Court in the second appeal. 36. In view of the discussions made, the substantial question of law in the above second appeal are answered in favour of the respondents. Accordingly the second appeal is dismissed. Considering the relationship between the parties, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.