Madras High CourtAnnappattu vs Muthusamy on 27 April, 2012Author:V.Periya KaruppiahBench:V.Periya KaruppiahIN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2012
CORAM
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
S.A.Nos.24 and 25 of 2004

1. Annappattu			... Appellant in both appeals
2.Chinnaiyan 			... Appellant in S.A.No.24 of 2004
				
				vs.

1.Muthusamy			... Respondent in S.A.No.25 of 2004
2.Kannusamy			... Respondent in both appeals

	Appeals filed underSection 100of C.P.C. against the judgment and decree dated 30.06.2003 in A.S.Nos.255 of 2002 and 256 of 2002  on the files of the Principal District Judge, Perambalur, reversing the judgment and decree dated 27.06.2002 in O.S.Nos.557/1993 and 894/1994 on the files of the District Munsif Court, Perambalur.

		For Appellants	    : Mr.R.Selvakumar

		For Respondents	    : Mr.P.Valliappan
    			 C O M M O N   J U D G M E N TS.A.No.24 of 2004:This appeal is directed against the judgment and decree passed by the 1st appellate court in A.S.No.255 of 2002 dated 30.06.2003  disposed along with A.S.No.256 of 2002 in reversing the judgment and decree passed by the trial court in O.S.No.557 of 1993 dated 27.06.2002 in dismissing the suit.2. The appellants were the defendants and the respondents were the plaintiffs in O.S.No.557 of  1993 before the lower court.3. The case of the plaintiffs as stated in the plaint would be as follows:-(i) Originally, the suit property belonged to one Rengasamy. He died in the year 1953. On his death, his wife Valliammai, his daughters Nallammal, Chinnammal and Manickathammal inherited those properties as his legal heirs and thereafter, the mother Valliammal died  in 1959 leaving the said three daughters as her legal heirs. As perHindu Succession Act, 1956, the three daughters were equally entitled to 1/3rd share in the suit property. The three daughters  partitioned their property and in the said partition, Manickathammal also got her share in the suit property. She married the first defendant. Manickathammal had no issues. Since Manickathammal lived with her husband in Kandiratheertham village, the first plaintiff along with the second plaintiff were doing cultivation in the land of Manickathammal on lease basis and gave the lease amount to Manickathammal. In the year 1989, Manickathammal died issueless. Since Manickathammal got the suit property through her father, as perSection 15(2)of the Hindu Succession Act, her father's legal heirs are entitled to the properties of Manickathammal.(ii) The first defendant has no right in the properties of Manickathammal. A settlement deed executed by the first defendant in favour of his second wife, the second defendant on 04.09.1992 was not valid in law. In respect of the same property, a sale deed executed in favour of the 3rd defendant is also not valid in law. Based on the same, the 2nd and 3rd defendants have no right to claim the suit property. The first defendant died during  pendency of the suit proceedings. The first plaintiff also died during the pendency of the suit on 04.03.1994. The first plaintiff has executed a registered  Will in favour of her daughter, the 3rd plaintiff. The property which belonged to the mother of the second plaintiff and the property of Manickathammal came to the hands of the 2nd plaintiff as per family arrangement. Thus, the suit property was enjoyment by the plaintiffs.  In the 'B' schedule property, already there was a thatched house but the same had fallen down and at present, the said place was vacant.  The 1st and 2nd defendants were living 35 kms away from the suit property, from the date of their marriage.  The defendants did not give any reply to the notice issued by the plaintiffs through their counsel. Hence, the plaintiffs prayed for declaration that the 'A' and 'B' schedule properties belonged to the 2nd and 3rd plaintiffs and for issuance of permanent injunction restraining the defendants from disturbing the peaceful possession and enjoyment of the suit property by the plaintiffs.4. The objections of the defendants raised in the written statement filed by them would be as follows:-The suit property belonged to Rengasamy. After his death, the suit property devolved on his wife Valliammal and after Valliammal's death the suit property devolved on her three daughters and the three daughters partitioned the properties and each of them were enjoying their property separately. During partition, the suit property came to the hands of Manickathammal and there is no dispute in that regard. It is not correct to state that Manickathammal died intestate leaving the suit property. On 17.1.1989, Manickathammal executed an unregistered will in favour of the first defendant in respect of the suit property. Thus, the suit property will not go into the hands of heirs of Manickathammal's father. The 1st and 2nd plaintiff has no right in the suit property. The sale deed executed by the first defendant in favour of the 3rd defendant on 4.9.1992 in respect of  'B' schedule property is valid in law. At the same time, the gift deed executed by the first defendant in favour of the 2nd defendant in respect of the 'A' schedule property is also valid in law.  From the date of execution of the sale deed and gift deed, the suit property was in enjoyment of the 2nd defendant's brother Nallathambi. The 3rd defendant is the daughter of Nallathambi. Both of them are living in the village where the suit property is situated. The defendants have sent reply to the notice sent by the plaintiffs' counsel. Hence, the suit may be dismissed.5. The case of both parties stated in the reply statement and the additional written statement would be thus:(i) In the reply statement it was stated that Manickathammal did not executed any sale deed on 17.1.1989. The said Will is a fabricated one. The Will was fabricated in order to get property right and to reject the right of the plaintiffs. According to  Hindu Succession Act, the suit property belonged only to  the legal heirs through Manickathammal's father. Further, the alleged Will dated 17.1.1989 or the xerox copy of the alleged Will was not produced by the defendants before the Court and no statement was made in the counter in respect of the production of the alleged Will.(ii) In  the additional written statement filed by the  defendants  it was stated that it is true to state that Manickathammal had executed a will. Since it was an unregistered Will, it will be produced at the time of trial. Ignoring the other legal heirs, the first plaintiff has executed the Will in favour of the 3rd plaintiff. Since it was accepted by all the plaintiffs, it cannot be stated that the Will is fabricated and it should be rejected.S.A.No.25 of 2004:6. This appeal is directed against the common judgment and decree passed in A.S.No.256 of 2002 along with A.S.No.255 of 2002 dated 30.06.2003 in reversing the judgment and decree passed in O.S.No.894 of 1994 dated 27.06.2002 in decreeing the suit.7. The appellant was the plaintiff and the respondent was the defendant before the trial court.8. The case of the plaintiff as stated in the plaint would be as follows:-The facts in this suit and the facts in O.S.No.557 of 1993 are similar. The 2nd defendant in O.S.No.557 of 1993 is the plaintiff in this suit. The third defendant in O.S.No.557 of 1993  is the defendant herein.  The son of Chinnammal is the defendant herein. This suit  has been filed seeking permanent injunction.  When the plaintiff had gone out of station, the defendant, in order  to sell the property to Kotarai Alagappa Paayachi, tried to  cut the babul trees standing in the suit property. The  same was thwarted by the brother of the plaintiff. Since there is likelihood  of  the defendant to  cut the trees again, the present suit has been filed seeking permanent injunction.9. The objections raised by the defendant in the written statement would be as follows:-The plaintiff does not have any right in the suit property. The allegation that he was enjoying the property through his brother is also not true. It is not true to state that the defendant tried to cut the trees when the plaintiff was not in station. After the death of Manickathammal, the suit property devolved  on the defendants family and Muthusamy family and they were enjoying the same. Since the plaintiff in this suit and her husband are interfering with the enjoyment of the suit property by Chinnammal and Muthusamy, the suit O.S.No.557/1997 has been filed. Since no declaration has been asked for in this suit, the suit filed by the plaintiff herein has to be rejected. The 'A' schedule property of the suit O.S.No.557 of 1993 is shown as the suit property in O.S.No.894 of 1994.10. The trial court had framed necessary issues in both the suits and clubbed both cases for a common trial. The trial court has recorded the evidence in O.S.No.557 of 1993 and the said evidence was treated as the evidence for the connected suit, O.S.No.894 of 1994. After the appraisal of the evidence adduced on both sides, the trial court had come to a conclusion of dismissing the suit in O.S.No.557 of 1993  and decreed the suit  without costs in the suit in O.S.No.894 of 1994 in a common judgment rendered on 27.06.2002.11. Aggrieved by the common judgments and the decrees passed in O.S.No.557 of 1993 and O.S.No.894 of 1994, the plaintiffs in O.S.No.557 of 1993 and the defendant in O.S.No.894 of 1994 preferred appeals respectively in A.S.No.255 of 2002 and 256 of 2002 before the 1st appellate court. The 1st appellate court had also taken both the appeals jointly and heard the arguments and passed a common judgment on 30.06.2003 and thereby reversed the judgments and decrees passed by the trial court and thus, both the appeals were allowed.12. The aggrieved defendants in O.S.No.557 of 1993 and the plaintiff in O.S.No.894 of 1994 preferred these two second appeals before this Court. On the admission of both the appeals, this Court had formulated common substantial questions of law on 06.01.2004 for being considered in these appeals which are as follows:-"1. Whether the courts below erred in applyingsection 15(2)of the Hindu Succession Act to the property of the deceased when partition was specifically pleaded by the respondents.2. Whether the lower appellate court went wrong in rejecting the Will when there is abundant evidence available on record to prove the Will."13. For convenience, the status of  parties in O.S.No.557 of 1993 is being maintained, infra, as the evidence was recorded before the trial court in the said suit only.14. Heard Mr.R.Selvakumar, learned counsel for the appellants/defendants and Mr.P.Valliappan, learned counsel for the respondents/plaintiffs.15. The learned counsel for the appellants (defendants in O.S.No.557 of 1993) would submit in his argument that the 1st appellate court had interfered with the well considered judgment of the trial court without any sufficient reasons. He would also submit that the non-registration of the Will would not raise any suspicion  over the genuineness of the Will. He would further submit that the non-inclusion of the entire properties of the testatrix would not also create any suspicion in the minds of the Court. However, the 1st appellate court had doubted the genuineness of the Will and had come to an erroneous conclusion. He would also submit that the irrevocability of the Will was not the intention of the testatrix and the mere reading of the Will would go to show the character of the Will that it is revocable or modifiable by the testatrix, she had expressed her intention not to revoke the said particular Will. He would further submit that merely because of expressing her intention in the Will itself, it would not restrain her from cancelling or revoking the Will since it was already stated in the Will. He would further submit in his argument that the evidence of PW1 and PW2 in respect of revocability of the Will, cannot be sustained. He would also submit that the Will produced in Ex.B2, cannot be treated as settlement deed merely because the intention of the testatrix has been expressed that she has no intention to revoke the said Will. He would further submit that the findings of the 1st appellate Court that the said Will Ex.B2 has to be treated as settlement deed and in the said circumstances, the said document ought to have been registered compulsorily and without such registration of the said document that could not be relied upon in evidence, cannot be sustained because, the intention of the testatrix cannot be mis-interpreted to the character of the document as the settlement deed. He would further submit that if the impugned Will Ex.B2 has been read in full, it would clearly show that it was only an expression of her will for not revoking the same and that would show that she has the power of revoking the Will at any time and to dispose the said property as per her wish. She would also submit that the 1st appellate court has passed its findings only on the said notion and if the Will Ex.B2 is considered out and out as a Will, the findings of the trial court ought to have been registered. He would also submit that when the Will is proved to be true and genuine, it will come into force on the death of the testatrix, Manikathammal and thus, the husband of the defendant Ponnusamy would get the entire property through the said Will. He would also submit that after the death of Ponnusamy, naturally, the defendant would get at the property as his legal heirs and the plaintiffs have no legs to stand for claiming the property. He would further submit that even though the Will Ex.B2 was not considered to be a true document, the properties belonged  to Manikathammal would be inherited by her husband Ponnusamy as per the provisions ofSection 15of Hindu Succession Act. He would also submit that the said Ponnusamy being the husband of Manikathammal, is entitled to the separate properties of his wife as perSection 15 (1) (a)of the said Act. He would also submit that even though, the suit properties were originally belonged to the mother of Manikathammal, the said Manikathammal had got the properties by virtue of a partition had in between the daughters of her mother and therefore, the character of the property that she got it through mother would be lost and therefore, the proviso underSection 15 (2)(a)of the said Act would not apply to the present case and the provisions ofSection 15(1)(a)would only come into operation. He would therefore, submit that even otherwise, the Will is not found to be true, the said Ponnusamy being the husband of Manikathammal would get at the properties and after his demise, it would devolve only upon the defendant. He would further submit that the defendants have preferred the Will by examining the attestors as DW2 and DW3 and the scribe as DW4 and they have clearly spoken about the execution of the Will by the said Manikathammal and there was no contradiction in the evidence regarding execution of the Will. He would also submit that the alleged contradiction found by the 1st appellate court are not in respect of the attestation and execution of the Will and therefore, their evidence should not be rejected by the 1st appellate court. He would also submit that the evidence of DW1 was also not properly appreciated by the 1st appellate court. He would further submit that the requirements of proof underSection 68of the Indian Evidence Act have been complied with by examining DWs. 2 to 4 and therefore, there should not be any interference in the judgment of the trial court.He would further submit that the presence of the attestors as well as the scribe of Ex.B2 Will, were not questioned in their cross-examination and therefore, their evidence adduced towards the proof of Ex.B2 Will, cannot also be suspected. He would also submit that the evidence given by DW4 that the Will which cannot be revoked would be a settlement deed, cannot hold water, since he was not an authority to say so. He would also submit that the construction of the Will have been spoken by the scribe DW4, who is the best witness to explain the same, however, the 1st appellate court had shown the reasons for the gaps left in each of the pages would not be accepted.  He would further submit that since Ex.B2 was the Will does not require compulsory registration and its genuineness is doubted merely because it was an unregistered document. He would also cite a judgment of the Hon'ble Apex Court reported in 2002 (1) MLJ 200 (SC) (Mauleshwar Mani and others v. Jagdish Prasad and others) for the principle that the entire construction of the Will has to be read for deciding the character of the said document as a Will.16. He would also cite a judgment of this Court reported in 2002 (3) MLJ 667 (T.N.Krishna Pillai v. K.Nallaperumal) for the principle that in a case of a Will, the last intention of the testator would be given effect to. Relying uponthe said judgment, he would argue that the intention of the testator was to give benefit to her husband through the said Will and therefore, the character of Ex.B2 cannot be questioned.He would rely upon a judgment of the Hon'ble Apex Court reported in 2007 (1) MLJ 25 (SC) (Sadhu Singh v. Gurdwara Sahib Narike and others) for the same principle. He would also cite a judgment of this Court reported in 1997 (3) LW 673 (Govindan Chettiar etc., v. Akilandam alias Seethalakshmi and 24 others) for the principle that the scribe can be treated as an attesting witness. He would also cite a judgment of this Court reported in 1994 (1) MLJ 216 (M.S.P.Rajesh v.M.S.P.Raja and others) for the principle that no Will can be doubted merely on the fact that the Will was not a registered document. He would further submit that the properties were admittedly belonged to Manikathammal and she had executed the Will under Ex.B2 and it was properly proved before the trial court and the judgment and decree passed by the trial court on the basis of the evidence was considered to be in accordance with law butthe said judgmentof the trial court has not been affirmed but reversed by the 1st appellate Court which cannot be a correct finding. He would also submit that the 1st appellate court had interfered in the well considered judgment passed by the trial court and the 1st appellate court had also come to the reversal of the trial court's judgment, which have not been warranted. The appellants / defendants have filed the suit which was also dismissed by the 1st appellate court. He would also submit that when the Will was found to have been proved automatically, the defendants would get at the property through the deceased Ponnusamy, the husband of Manikathammal. He would therefore, request the Court to set aside the judgment and decree passed by the 1st appellate court in reversing the judgment of the trial court.17. The learned counsel for the respondents/plaintiffs would submit in his argument that admittedly, the suit properties in O.S.No.557 of 1993 devolve upon Manikathammal from her mother and apart from the said properties, she also got the properties purchased in her name by her husband but the properties derived by her from her mother were alone shown in the Will. He would further submit in his argument that the Will was an unregistered one. The Will said to have been executed by the testatrix Manikathammal on 17.01.1989 was stated to have come into force on the death of Manikathammal, in the year 1989. If really, the Will was a true document, the subsequent sale effected by her husband Ponnusamy to some other third party on 04.09.1992 by Ex.A19 equivalent to Ex.B10 would have a reference about the devolution of the said property through Ex.B2 Will. But the vendor Ponnusamy had referred the devolution of the property in his favour ancesterally. He would further submit that the said mention by the husband of Manikathammal in Ex.A19 as ancestral property would go to show that there was no existence of the Will at the time of Ex.A19. He would further submit in his argument that the non-registration of the Will would increase the gravity of the suspicious circumstances of the said Will. He would also submit that if really a Will was a true and genuine document, the derivation of the property by the vendor Ponnusamy ought to have been mentioned as he derived the said property through the Will executed by Manikathammal. He would further submit that the said suspicion would enlarge further on the contradictory  evidence given by the attestor as well as the scribe while they were examined DW2 to DW4. He would also point out certain discrepancies in their evidence and had drawn the support from the judgment of the 1st appellate court in mentioning the said contradiction.  He would also submit that the Will said to have been executed by Manikathammal could be a concocted one since the properties purchased in the name of Manikathammal were not included in the said Will. He would also submit that the evidence of DWs would go to show  the right in the properties mentioned in the Will meant to have obtained by the beneficiary Ponnusamy on the date of execution of the Will itself and this would go to show that the said document Ex.B2 was not considered to be a Will since the right at presently were stated to have been created. He would also submit that the said Will was containing 5 pages in which the testatrix was stated to have put her thumb impression in all the pages but the evidence of DWs 2 to 4 are contradictory regarding the total pages of the Will and this would go to show that  the Will was not a true and genuine document but was concocted by the defendant's husband and the witnesses. He would also submit that when the Will was not considered to be a true document, the properties belonging to Manikathammal should be distributed among her legal representatives underSection 15of the Hindu Succession Act. The suit properties were admittedly belonged to the mother of Manikathammal and she derived from her mother only and therefore, it would not devolve upon the heirs mentioned underSection 15(1)of the Act since she had no children.  He would also submit that the husband Ponnusamy was also excluded from inheriting the property from his wife. Since the properties were obtained by her from her mother,the devolution would be only upon the heirs of Manikathammal underSection 15(2) (a)of the Act, namely the heirs of the mother of Manikathammal. The plaintiffs who are the heirs of Manikathammal underSection 15(2)(a)of the Act would get at the properties in the absence of any testament validly executed by Manikathammal. He would draw the attention of the Court to various judgments of this Court, Karnataka High Court and Hon'ble Apex Court. He had cited a judgment of this Court reported in 1998 (2) LW 744 (Mookayi Ammal and 3 others v. Duraisamy Udayar and 2 others) for the principle that the Court had to consider the surrounding circumstances, while appraising the evidence of the attestors when the legal heirs of the testatrix through intestate succession were disinherited by virtue of the bequeaths made in the Will.He would also bring it to the notice of this Court to a judgment of the Hon'ble Apex Court reported in 1997 (2) LW 686 (Kartar Kaur and another v. Milkho and others) for the principle regarding the duty of the propounder to dispel the suspicious circumstances. He would also bring it to the notice of this Court in respect of a judgment of this Court reported in 1997 (3) LW 673 (Govindan Chettiar etc., v. Akilandam alias Seethalakshmi and 24 others) for the principle that the scribe would not be treated as an attesting witness to prove the said Will.He would  also cite a judgment of Delhi High Court reported in AIR 1988 Delhi 273 (Dinesh Kumar v. Khazan Singh and others) for the principle that the propounder  has to prove the genuineness and satisfy the conscience of the Court regarding the truth and genuineness of the Will.Yet another judgment of this Court  reported in 2002 (3) MLJ 667 (T.N.Krishna Pillai v. K.Nallaperumal) was also relied upon by the counsel for the respondents for the principle that the last intention of the testator has to be considered for perceiving the testators intention. For relying upon the said principle, he would submit that the Ex.B3 would be considered as irrevocable document and it would not be a Will.He would also quote the judgment of this Court reported in 2002 (1) MLJ  116 (Gangammal and others v. Mari Moopan and others) for the principle that when any suspicious circumstances clouded the attestation and execution of the Will, the propounder of the Will has to dispel such suspicious circumstances. Relying upon the said principle, he would submit that the defendants have not cleared the suspicious circumstances cast upon the Will Ex.B2 in order to show that it is a genuine document. He would also rely upon a judgment of Karnataka High Court reported in AIR 1982 Karnataka 198 (T.M.Channabasamma dead by L.Rs., and others v. T.M.Rudriah, dead by L.Rs, and others) for the same principle. He would also submit in his argument that the Will could not be considered as a true and genuine document and if the Will is not found to be true, the plaintiffs would be the legal heirs of the deceased Manikathammal and the defendants would not get any property under the guise of the Will.He would also cite a judgment of the Hon'ble Apex Court reported in 2003 (4) CTC 122 (SC) (V.Dandapani Chettiar v. Balasubramanian Chettiar(dead) by LRs. and others)  for the principle that the character of the property derived from the mother would not be changed merely because any partition has intervened in between the co-owners. He would also submit that the partition had by Manikathammal with her sister, after the death of her mother would not in any way change the character of the property that she had inherited from her mother and therefore, the suit properties which are admittedly the properties inherited by Manikathammal would devolve upon her mother's heirs namely the plaintiffs, since the Will said to have been executed by Manikathammal was not a true and genuine document. He would therefore, request the Court that the judgment and decree passed by the 1st appellate Court are in accordance with law and they are not liable to be interfered. He would also submit that the two appeals filed by the appellants have no legs to stand and therefore, may be dismissed with costs.18. I have given anxious thoughts to the arguments advanced on either side.19. The suit in O.S.No.557 of 1993 was filed by the plaintiffs seeking for a declaration that the suit  'A' and 'B' schedule properties are belonging to the plaintiffs 2 and 3 and the plaintiffs possession and enjoyment in respect of the suit properties should not be disturbed by the defendant or their men or agents. The 2nd defendant in O.S.No.557 of 1993 had also filed a suit in O.S.No.894 of 1994 against the 3rd plaintiff in O.S.No.557 of 1993 seeking for permanent injunction against the defendant (3rd plaintiff in this suit) or his men from interfering with the plaintiffs (2nd defendant in this suit) possession and enjoyment of the suit properties and also for costs. The suit properties in O.S.No.557 of 1993 are the same as in O.S.No.894 of 1994. The relationship in between parties namely,  the 1st plaintiff was the sister of Manikathammal and Nallammal who were of the daughter of one Valliammai and the 3rd plaintiff Kannusamy was the son of 1st plaintiff Chinnammal and the 2nd plaintiff was the son of Nallammal. The case of the plaintiff is that the said Manikammal was given in marriage to Ponnusamy at Kandiratheertham and was living with the said Ponnusamy, the 1st defendant and they had no issues through the wedlock. The case of the defendant that the 2nd defendant was married to the 1st defendant even during the life time of Manikathammal which was also not seriously disputed by the plaintiffs. It was also not disputed that the 3rd defendant was the son and the 2nd defendant's brother namely Nallathambi. The further case of the plaintiffs is that the suit properties originally belonged to one Rangasamy  and on his death, his wife Valliammai and daughters Nallammal, Chinnammal and Manikathammal  who inherited those properties and thereafter, the mother Valliammai died in the year 1959 leaving three daughters namely, Nallammal and Chinnammal and Manikathammal as her heirs underHindu Succession Act, 1956and they are equally entitled to 1/3rd share in the suit properties and they have also partitioned their properties and in the said partition, the said Manikathammal got the suit properties which was also not seriously disputed. Therefore, it is clear from the case of both parties that the suit properties were belonging to Manikathammal and she was the owner of the said properties. The evidence adduced in this case would also go to show that the 1st defendant had also purchased certain other properties in the name of Manikathammal at Kanditheertham  and the said property was also enjoyed by the said Manikathammal.20. The case of the plaintiffs that the said Manikathammal died subsequently without any issues and the properties being inherited by her from her father via mother in the year 1959, along with other heirs of her mother as per the provisions ofHindu Succession Act, has been denied by the defendants. Therefore, the plaintiffs have filed the suit for declaration. The defendants stand would be that the said Manikathammal was no doubt the owner of the property but she had executed an unregistered Will on 17.01.1989 in a sound and disposing state of mind, in the presence of two attestors in respect of the suit properties in favour of her husband Ponnusamy(1st defendant) and the said Will came into force on the death of Manikathammal in the year 1989. The further case of the defendant would be that since the said Will came into force and the Will was acted upon by selling one of the suit properties by the 1st defendant through Ex.B10, the plaintiffs would not get any right in the suit properties. The further case of the defendant would be that even otherwise, the Will is not true, the suit properties inherited by Manikathammal, cannot be treated as the properties inherited from her mother or father, since the said properties were subsequently divided through a partition between the sisters and therefore, the property would be deemed as the exclusive properties of Manikathammal. Therefore, the defendants claim that the 1st defendant would get at the property as per the provisions ofSection 15(1)(a)of the Act and hence, the defendants would pray that the suit has to be dismissed.21. The trial court had dismissed the suit filed by the plaintiffs and decreed the suit filed by the defendant in O.S.No.894 of 1994 without costs. For that, it had come to the conclusion that the Will produced in Ex.B2 was proved to have been executed by Manikathammal in a sound and disposing state of mind in the presence of attesting witnesses, after relying upon the evidence of DW2 to DW4, the attestors and scribe. The 1st appellate court, on appeal by the plaintiffs, had reversedthe said judgmentand had come to the conclusion that the Will was not a true document and the plaintiffs are entitled to inherit the suit properties as legal representatives of the deceased Manikathammal underSection 15(2)of the Act. While decreeing the suit of the plaintiffs, the 1st appellate court had dismissed the suit filed by the 2nd defendant filed against the 3rd plaintiff.22. We have to consider the arguments advanced on either side and to decide whether the 1st appellate court is right in reversing the judgment of the trial court in both the suits.23. As discussed earlier, the suit properties were obtained by Manikathammal from her mother through a partition had in between her sisters. The case of the defendant would be that she has executed a Will in favour of the 1st defendant however, it has been contended by the plaintiff that it has been a concocted Will. The arguments advanced was that if really the Will was in existence in an unregistered stage and the property has been derived by the 1st defendant through the said Will that should have been found a place in a subsequent sale deed executed by the 1st defendant, in respect of one of the suit properties in Ex.A19 = Ex.B10. No doubt, the Will dated 17.01.1989 was said to have acted upon on the death of Manikathammal  in the year 1989 itself. Therefore, the 1st defendant, who was the husband of Manikathammal, if really derived the said property through the Will ought to have mentioned the way of devolution as he got through the Will Ex.B2 in Ex.A19. Ex.A19 is a document subsequent to the Will i.e. On 04.09.1992. On a careful perusal of the said document, I could see that the devolution of the said property was said to have obtained by him ancestrally. There was no reference as to the devolution of the property through the Will dated 17.09.1989 (i.e.) Ex.B2. In the back drop of this circumstance, if we approach the proof of execution of the Will, I could see that the evidence on DW2 and DW3 the attestors, are very important witnesses for deciding the case. According to the submission of the learned counsel for the appellants/plaintiffs,  their evidence were untrustworthy because they have spoken much controversy in their evidence. However, the learned counsel for the respondents/defendants would submit that such contradictions were related to some other aspects and there was nothing contradictory in respect of attestation and execution of the Will. When we go through the evidence, I could see that DW2, one of the attestors would speak in his cross-examination that the properties were left by the testatrix to the 1st defendant on the date of execution of the Will itself and the properties in Kanditheertham was also bequeathed by the said Manikathammal in favour of the 1st defendant. Apart from that, he would state that he had seen the testatrix put her signature in 3rd page and he did not know about putting the thumb impression in other pages. He would categorically assert that Manikathammal put her thumb impression in two or three pages in the Will, whereas another attestor DW3 would state in his evidence that he did not know in, how many pages  Manikathammal put her thumb impression while executing the Will. DW3 would further admit in his cross-examination that Manikathammal put her thumb impression in 4 papers and on putting the thumb impression in 4th page she put her signature in the Will. He had also spoken to the effect that the Will was executed in respect of all of her properties.  DW3 had also admitted that the property at Kanditheertham was not included in the Will. When the evidence of DW2 and DW3 were considered in the light of the evidence of the scribe examined as DW4, I could see that the Will has got 5 pages and in all 5 pages, the said Manikathammal was said to have put her thumb impression. The evidence of DW2 and DW3  are not quite correct with the evidence of DW4 and the actual pages of the Will in Ex.B2. DW4 scribe would say that the said Manikathammal had expressed her intention not to cancel the Will and DW4 had also written the same in the Will.DW4 had also admitted that such references, was a mistake but in the said Will, it has been incorporated. Whether the evidence adduced by the defendant would show any proof in respect of Ex.B2 Will as a genuine document. On the basis of the said admission given by DW4, the Will cannot be  considered as a settlement deed. For that, the judgment of Hon'ble Apex Court reported in 2002 (1) MLJ 200 (SC) (Mauleshwar Mani and others v. Jagdish Prasad and others) was relied upon. The relevant passage would run as follows:-"6. The first and the second question are overlapping and, we shall, therefore, consider both the questions together. Ordinarily, the rule of construction of a Will is that a Will (bequeath) has to be read in its entirety and effort should be made that no part of its excluded or made redundant. In other words, it is the duty of the Court to reconcile if there is any apparent inconsistency in a Will.InRadha Sundar Dutta v. Mohd. Jahadur Rahim and others, 1959 S.C.R. 1309, it was held that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim 'ut res magis uaieat quam pereat'."24. Yet another judgment of the Hon'ble Apex Court reported in 2007 (1) MLJ 25 (SC) (Sadhu Singh v. Gurdwara Sahib Narike and others) has been relied upon for  the principle that the later clause of the Will only be relied upon."20. .......... Thus on reconciling the various clauses in the Will and the destination for the properties that the testator had in mind, we have no hesitation in coming to the conclusion that the apparent absolute estate in favour of Isher Kaur has to be cut down to a life estate so as to accommodate the estate conferred on the nephews."25. There is no doubt that in a Will, the later clause will prevail. On a careful perusal of Ex.B2, it has been mentioned as follows:-"Mdhy; vf;fhuzj;ijf; bfhz;Lk; ,e;j capiy khw;Wtjw;fpy;iy "26. Similarly yet another sentences in the Will has been referred to for the purpose of finding the character of the said document namely 
	" tptfhu';fs; Vw;glhky; ,Uf;Fk; bghUl;Lk; moapy;  fz;l brhj;Jf;fis ey;yKiwapy; ,d;Wk; mila ntz;Lk; vd;W Xh; Vw;ghL ,e;j capy; gj;jpuk; K:yk; vGjp itj;Js;nsd;  "27. According to the submission of the learned counsel for the respondent,  the rights of the suit properties were intended to be transferred in praesenti and right of revocability was not reserved by the testatrix even though, she has stated in the earlier sentence  as so and therefore, the said Will, even if true, could not be treated as a Will. His further contention would be that if really, the right in the property has been transferred in praesenti on the date of execution of Ex.B2, it should be considered as a settlement deed executed in favour of the 1st defendant but the settlement requires some other duty and it should compulsorily a registrable document and therefore, it cannot be received  in evidence.  The said argument advanced by the learned counsel for the plaintiffs are in consonance with the principles of law. The evidence of DWs 2 to 4, in respect of the execution of the Will even though spoken about the attestation of the testatrix execution but they were not considered to be reliable because, serious contradictions were made in respect of the pages on which the testatrix had put her thumb impression. The said contradiction could have been considered as immaterial in the event, the Will was a registered one. Even if an unregistered Will could have been relied upon, if it was referred to in the subsequent documents executed by the parties concerned. In Ex.A19 = Ex.B10, a sale deed executed by the 1st defendant in favour of 3rd party in respect of one of the suit properties, which is clearly after the said Will came into force, he did not refer, but the devolution to the property was stated to have got ancestrally. But it would go to show that there was no Will prior to the execution of Ex.A19 and therefore, the 1st defendant had stated that he got the property ancestrally. The said circumstances were not explained by the 2nd defendant who was examined as DW1.28.  It is an admitted fact that the 2nd defendant was married even during the life time of Manikathammal and she is also claiming the property as one of the legal representative of the deceased 1st defendant, which is not in accordance with law. The various judgments cited by the learned counsel for the defendants reported in 2010 (13) SCC 147, 1997 (3) LW 673 are not applicable to the facts of the case. There is no reference to the plaintiffs who are the legal representatives of the deceased testatrix but for the Will. The Sub-Registrar Office is stated to have been housed at Keel Pallathur and there was no reason for not registering the Will immediately after its execution. The non-inclusion of her house property at Kandiratheertham was also not explained in the evidence of DW1.  On the other hand the witnesses DW2 and DW3 would state that the kandiratheertham property  was also included in the Will and it was spoken to by the testatrix. There are several items of suit properties numbering more than 10 and it was the evidence of DWs that the Will was constructed by Manikathammal without any pariculars in her  hand or  going through the documents and any papers regarding description of the properties. These circumstances, would create suspicious circumstances and those circumstances were not cleared through the evidence of attestors and scribe. No doubt, the Will is a solemn document, to which, the person  executed cannot come to Court to speak about its genuineness. Therefore, the Courts are very much anxious with the evidence adduced by the attestors as well as scribes who are said to have been  connected in the Will. The evidence adduced by DWs 2 to 4 are not trust worthy and they are not helpful to clear the suspicious   circumstances cast upon the execution of the Will and their evidence are not satisfactory. Therefore, the principlelaid down inthe judgment of this Court reported in 1994 (1) MLJ 216 (M.S.P.Rajesh v.M.S.P.Raja and others) cannot be made applicable to the present facts of the case. When the registration was possible, it was not done. Moreover, the evidence of DWs 2 to 4 are not reliable to prove the attestation and execution of Ex.B2 and therefore, the principlelaid down inthe said  judgments are also not applicable.29.  The learned counsel for the plaintiffs had submitted catena of Judgments of this Court reported in  1998 (2) LW 744 (Mookayi Ammal and 3 others v. Duraisamy Udayar and 2 others) in which, it has been categorically laid down as follows:-"7. ..... A Will is a solemn document exected by a person whereby he bequeathes his properties with intent to come into effect after his death. It is always revocable at the violation of the executant. It is optionally regiterable. In Ex.B-8, a right in praesenti is created and it further declares that the executant will have no right to cancel the same. These two stipulations in the deed create a doubt in the mind of the court, whether the document is a testamentary disposition or not."30. He would also cite yet another judgment of this Court reported in  1997 (2) LW 686 (Kartar Kaur and another v. Milkho and others), which would runs as follows:-"13. ... Having executed the Will, why did he execute sale deeds in favour of second respondent, a minor ? Why did he not make a reference to the registered Will in the sale deeds subsequently executed ? These are all tale crucial circumstance casting unchangeable clouds hovering around the genuineness of the Will and the burden is always on the propounder to explain and prove to satisfy the conscience of the Court but miserably failed to do so.""18. In the light of the settled principles, we have carefully gone through the evidence and we find that the trial court was justified in doubting the genuineness of the Will and rendering a finding that propounder has not dispelled the suspicious circumstances beyond reasonable doubt. The lower Appellate Court while reversing the judgment of the trial court has simply overlooked or ignored many important aspects dealt with by the trial court. Unfortunately, the High Court without going through the matter dismissed the Second Appeal in two words."31. Those judgments would go to show much volume about the dispelling of the suspicious circumstances beyond reasonable doubt, the failure of which would make the Will unreliable. In this case, the defendants who were the propounders of the Will Ex.B2 had failed to explain the suspicious circumstances and therefore, the evidence of DWs 2 to 4 should have been adduced before the Court as interested  witnesses in connivance with the 1st defendant. The contradiction in respect of putting the thumb impression by the testatrix would speak  volume about the falsity of their evidence. The 1st appellate court had categorically come to a conclusion that the lower Court failed to understand the case and thus,  dismissed the suit in O.S.No.557 of 1993 and decreed the suit in O.S.No.894 of 1994 and thus reversed the findings in both the appeals. The reasons put forth by the 1st appellate court are in consonance with the principleslaid down bythe Hon'ble Apex Court.32. A fag attempt was made by the learned counsel for the appellants/defendants that the properties obtained by Manikathammal had lost its character as inherited by her from her mother so as to get the benefit ofSection 15 (2) (a)of the Act by virtue of getting the said properties through a partition in between her sisters.  For that, the learned counsel for the appellant would cite a judgment of the Hon'ble Apex Court reported in 2008 (7) SCC 46 (Hardeo Rai v. Sakuntala Devi and others) in support of his argument. The relevant passage would run thus:-"22. For the purpose of assigning one's interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as "joint tenants" but as "tenants-in-common". The decision of this Court in SBI, therefore, is not applicable to the present case.23.Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. "33. However, the learned counsel for the respondents/ plaintiffs would cite a judgment of the Hon'ble Apex Court reported in 2003 (4) CTC 122 (SC) (V.Dandapani Chettiar v. Balasubramanian Chettiar(dead) by LRs. and others) in support of his argument that the character of the property inherited by a person from the mother or father will not lose his character merely because it was partitioned between the co-owners or through a compromise decree. The relevant passage would run thus:"17. It will be seen from the facts of the present case thath Rajathiammal ahd inherited the property from her mother, the section applicable will beSection 15(2)of the Act, according to which the properties will go to the heirs of her father and, therefore, the plaintiff/applicant and defendants 2 - 9 / respondents 2-9 who are the sons and daughters of Rajathiammal's father, Venugopal Chettiar, through his third wife Negalakshmi would be entitled to the suit properties. Therefore, the case put forward by the first defendant and other contesting defendants that Rajathiammal inherited the properties not from her mother but also from her grand-mother and great grand-mother, and, therefore,Section 15(1)of the Act would only apply cannot at all be countenanced.18. In the instant case, Rajathiammal acquired her rights by virtue of compromise which is a reiteration and a declaration of her pre-existing right. Therefore, on the death of Rajathiammal who died intestate and issueless, the suit properties devolved upon the heirs of her father, Venugopal Chettiar. The present plaintiff/appellant, V.Dandapani Chettiar, who is the son of the father of Rajathiammal through his third wife and respondents 2-9 and 23 who are children of the father of Rajathiammal and one of his wives becomes the heirs and entitled to succeed underSection 15(2)(a)of the Act since the properties came to Rajathiammal under the compromise decree amounts to a declaration of her pre-existing  right under the compromise decree passed by the Courts."34. On a careful understanding of the aforesaid judgment of the Hon'ble Apex Court,  I could see that the suit properties were obtained by Manikathammal through a partition in between her sisters after the death of her mother Valliammai  in the year 1959, who got it from her husband  Rangasamy. The said property was not a coparcenary property  but was the property belonged to her mother.In the case discussed by the Hon'ble Apex Court reported in 2008 (7) SCC 46 (Hardeo Rai v. Sakuntala Devi and others), the co-parcenary properties were found to have lost their character on entering into a partition between the co-sharers whereas this property being the exclusive property of mother was divided among the daughters will  not lose its character so as to deprive the right underSection 15 (2)of Hindu Succession Act.It is very clearly mentioned in the judgment of the Hon'ble Apex Court reported in 2003 (4) CTC 122 (SC) (V.Dandapani Chettiar v. Balasubramanian Chettiar(dead) by LRs. and others) that the character of the property obtained from mother would be a reiteration and declaration of her pre-existing right even after, partition or a compromise decree. Therefore, the said arguments advanced on the side of the appellants/defendants that the property lost its character as derived from father or mother so as to attractSection 15(2)of the Act is not acceptable. Having found that the Will in Ex.B2 was not true, genuine and valid document, the suit property should have devolved in accordance with the provisions ofSection 15of the Act. On the death of Manikathammal in the year 1989,  she had no issues and therefore, her husband would be only the heir as perSection 15(1) (a)of the Act. It has been already found that the property was inherited by Manikathammal from her mother and therefore,Section 15 (2) (a)alone is applicable for this case. For better understanding and appreciation,Section 15(2) (a)has to be extracted hereunder.:"15(2) (a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and"35. As perSection 15 (2) (a)in the absence of any issues, son and daughter, the mother or father's heir will take away the property as the heirs of the deceased. It is not disputed that the 1st plaintiff was the sister of Manikathammal and 2nd plaintiff was the son of Nallammal, another sister  and 3rd plaintiff was the son of another deceased sister Chinnammal. Therefore, the plaintiffs would be the heirs of Manikathammal to inherit the suit properties as per the provisions ofSection 15(2) (a)of the Act, since the alleged Will produced in Ex.B2 was not found to be a true, genuine and valid document. Therefore, all these legal principles were followed by the 1st appellate court and it had come to the conclusion of reversing the judgment of the trial court made in both the suits. The judgment and decrees  passed by the trial court are certainly liable to be interfered and the 1st appellate court had rightly interfered inthe said judgmentand decree passed by the trial court and therefore, the judgment and decree passed by the 1st appellate court are not liable to be interfered.36. For the foregoing discussion, I am of the considered view that the 1st appellate court had correctly perceived the evidence and followed the principles and had come to the conclusion of interfering with the judgments and decrees passed by the trial court in O.S.No.557 of 1993 and O.S.No.894 of 1994 and therefore, they are not liable to be  interfered.37. The questions of law framed are therefore, not decided in favour of the appellants.38. In fine,  I am of the considered view that both the second appeals are not having any merits and therefore, they are liable to be dismissed. Accordingly, both the second appeals are dismissed. No costs.27.04.2012
Index:Yes/No
Internet:Yes/No
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V.PERIYA KARUPPIAH, J.,

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To1. The Principal District Judge, Perambalur2.  The District Munsif Court, Perambalur


Pre-delivery Judgment in
S.A.Nos.24 and 25 of 2004











27.04.2012