IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.07.2008 CORAM : THE HONOURABLE MR.JUSTICE V.DHANAPALAN A.S.No.532 of 1994 Samiyappa Gounder ... Appellant/1st defendant vs. 1. Palanisamy 2. Bala Mani 3. Bhagiyalakshmi ... Respondents/plaintiffs Appeal filed under Section 96 of the Code of Civil Procedure praying to set aside the judgment and decree dated 03.03.1993 made in O.S.No.11 of 1990 on the file of the Subordinate Judge of Tiruppur. For Appellant : Mr.M.M.Sundresh For Respondents: Mr.R.Saseetharan J U D G M E N T Challenging the judgment and decree dated 03.03.1993 made in O.S.No.11 of 1990 on the file of the Subordinate Judge, Tiruppur, the aggrieved 1st defendant in the suit has preferred this appeal. 2. The case of the plaintiffs as put forth before the Court below is, as under: (i) Originally, the suit property belonged to one Subbae Gounder and Pazhanisamy Gounder in common and they were entitled to half-share each. Defendants 3 and 4 as the sons of Pazhanisamy Gounder are each entitled to 1/4th share of the suit property in common. After the death of Subbae Gounder, his share in the suit property had devolved upon his sons Rangae Gounder and Vayyapuri Gounder, each have 1/4th share in common. Rangae Gounder died leaving behind his sons, the defendants 1 and 2 and Rangae Gounder's 1/4th share of the suit property belong to defendants 1 and 2, each having 1/8th share. Vayyapuri Gounder died leaving behind his daughter Palanathal and widow Valliammal; the 1/4th share of Vayyapuri was later assessed in the name of Valliammal along with co-sharers; since the whereabouts of Palanathal, the daughter of Vayyapuri was https://hcservices.ecourts.gov.in/hcservices/ not known for the last 25 years, she is decided to be dead under law; Valliammal, the widow of Vayyapuri also died during May 1989. The plaintiffs, who are the son and daughters of Palanathal are entitled to Vayyapuri Gounder's 1/4th share in the suit properties. (ii) The suit properties belong to the plaintiffs and the defendants in common and they are in joint possession and enjoyment of the properties; the plaintiffs are entitled to common 1/4th share and the defendants 1 and 2 are entitled to 1/8th share each and defendants 3 and 4 each are entitled to 1/4th share in common. Since common possession and enjoyment in the suit land had become inconvenient and troublesome, with an interest to have the property divided by metes and bounds, the plaintiffs approached the defendants personally for an amicable partition; since the defendants had been evading the same under some or other pretext, the plaintiffs caused a notice dated 22.11.1989 to the defendants setting forth the facts and demanding partition; even after the receipt of the notice, the defendants 2, 3 and 4 neither replied nor had come forward to meet the demand and the 1st defendant had returned the notice. Having no other alternative, the plaintiffs filed an appeal in O.S.No.11 of 1990 seeking partition of their 1/4th share for separate possession. 3. The 1st defendant filed written statement denying the plaint averments as false and frivolous. It is his submission that the plaintiffs are not the children of Palanathal, the daughter of Valliammal and to their knowledge, Palanathal is still living with her second husband and several people in the village see her quite often and it is false to say that her whereabouts is not known for the past 25 years. Further, Vayyapuri Gounder, the husband of Valliammal died more than 40 years back and as such, as per law, Palanathal, the daughter of Vayyapuri has no right in the property; while so, the plaintiffs claiming as heirs of Palanathal cannot claim any right in the suit property. 3a. It is further stated in the written statement that the deceased Vayyapuri Gounder was entitled to share only in S.F.No.16/2, 19, 29/2 and 54/3; Valliammal, as the legal heir of Vayyapuri Gounder was cultivating in the said land for some time and thereafter leased out the same to one Rangasami Gounder, the father of the 1st defendant. According to the 1st defendant, Valliammal, wife of Vayyapuri Gounder before her death had executed a Will on 01.02.1988, bequeathing her right in the suit properties in his favour; therefore, it is the case of the 1st defendant that he alone is in possession and enjoyment of the properties and the plaintiffs never enjoyed the properties at any time in any way. It is the further case of the 1st defendant that in view of rapid industrialisation, the value of the properties in the suburbs of Tirupur Town like the suit properties have gone up and they are fetching good prices and only with a view to give trouble to the defendants and to extort some https://hcservices.ecourts.gov.in/hcservices/ money or some extent of the land, the plaintiffs have preferred the suit; therefore, they prayed for dismissal of the suit. 4. The plaintiffs in their reply to the written statement has stated that the denial of parentage of the plaintiffs and the set up of a Will by Valliammal in favour of the 1st defendant are all inventions of the 1st defendant for the purpose of evading the rights of the plaintiffs. He has further stated that the 1st defendant, who had evaded the notice has now come forward with the allegation of Will in his favour only to get over service of notice to the 2nd defendant. The plaintiffs submit that they are the son and daughter of Palanathal, the daughter of Valliammal. It is their case that the alleged Will should be a bogus and forged one, since there is no need for Valliammal to bequeath the properties by way of Will, that too in favour of the 1st defendant and on the other hand, if the thumb impression in the Will is that of Valliammal, it could have been obtained by influence or by coercion; therefore, in any event, the alleged Will is not valid and the defendants cannot claim any right by such Will. 5. The Trial Court, on consideration of the entire facts and circumstances of the case and on an analysis of the material records, decreed the suit in favour of the plaintiffs that they are entitled to 1/4th share in the suit property. Aggrieved by the same, the 1st defendant has come on appeal before this Court. 6. Learned counsel for the appellant has contended that the Trial Court has failed to appreciate that the respondents have not proved that they are the legal heirs of Palanathal and they have also not proved the factum of possession of the suit properties. It is his further submission that the Trial Court has erred in holding that the appellant has not proved that Palanathal is living separately, whereas the onus to prove that she is not heard for the past 25 years is on the respondents. He further contended that the Trial Court erred in disbelieving Ex.B1-Will, despite the same being signed by Valliammal and attested by D.Ws.2 and 3 and it has also erred in relying upon Ex.A3, which is not a conclusive proof to show that the respondents are the children of Palanathal. He also contended that the Trial Court has erred that in the event of death of Palanathal, her mother Valliammal is the owner of the suit property and hence the transfer of the suit property in favour of the appellant is correct. 6a. In support of his contentions, learned counsel for the appellant has relied on the following judgments: (i) In XV MLJ 517 in the case of K.Krishnamachariar vs. Veeravalli Krishnamacharichar, this Court has held as under: “... Then what is the documentary evidence? The plaintiff produced a document which is Exhibit C in the case, which, he says, is the horoscope of the deceased. That is spoken to by his 9th witness. An objection was https://hcservices.ecourts.gov.in/hcservices/ taken to the evidence of this witness with reference to the horoscope on the ground that the witness was not the writer and that he had no personal knowledge of its correctness. The learned judge does not say how he dealt with the objection, but apparently the document was admitted in evidence. The document states that the deceased was born in November 1890. The will being April 1909 is not called, and apparently all the witness says with reference to the horoscope is that the deceased man's natural father gave the horoscope to the deceased man's adoptive father and by some means or other, which are not stated, it got in to the possession of the witness. The learned judge seems to think that this horoscope as a piece of evidence is worthless, and I think so too. ...” (ii) In AIR 1978 Madras 42 in the case of The Secretary to Government, Home Department and another vs. T.V.Hari Rao, this Court has held as under: “12. Even original horoscopes, though may be admissible under S.32(5) of the Evidence Act, their evidentiary value is very little, See Bharat Basi vs. Gopinath, AIR 1941 All 385; V.M.Namboothiri vs. K.K.Kuruvila, AIR 1957 Kerala 103 and Parasram vs. Dayaldas, AIR 1965 Him Pra 32. In the present case, there is not even the original horoscope but only copies thereof. Even these copies have not been really connected with the plaintiff. Therefore, it must be held that there is no evidence that the plaintiff was born on 14.02.1923 as is now claimed.” (iii) This Court in yet another judgment reported in 2001 (3) L.W.492 in the case of Subbarayan vs. Murugesan and 3 others has held as under: “4. On the basis of these pleadings, issues were framed. On behalf of the plaintiff, P.W.1, the plaintiff, P.W.2 Kuppammal and P.W.3 Kanna Pillai were examined and Exs.A-1 to A-17 were marked. On the side of the defendants, the second defendant was examined as D.W.1 and the first defendant was examined as D.W.1 and the first defandant was examined as D.W.2 and Exs.B-1 to B-15 were marked. 5. On considering the materials on record, the trial court concluded that the deed Ex.A-17 exeucted by Natesa Pillai in favour of Kuppammal is a Will and since it was not proved that the said Natesa Pillai died, Kuppammal would not be entitled to get the right of selling the property and consequently, the plaintiff's reliefs sought for in the suit cannot be granted. The lower appellate https://hcservices.ecourts.gov.in/hcservices/ Court also while confirming the judgment and decree passed by the trial Court would hold that there is no evidence to show that Natesa Pillai, who was the owner of the suit property, died and therefore, the sale deed executed not only by P.W.2 in favour of the plaintiff but also by P.W.2 in favour of the plaintiff but also the other sale deeds executed by other sisters are no valid. ... “ (iv) In 97 L.W. 313 in the case of R.Gopala Pathar vs. N.Jayalakshmi Ammal and others, this Court has held as under: “It is thus manifestly clear that though a presumption regarding death could be generally drawn if a person had not been heard for seven years by those who would have ordinarily heard of him, had he been alive, yet, there is no presumption whatever regarding the precise date of death. The presumption under S.108 of the Indian Evidence Act could be raised to extend generally to the fact of death at the expiration of seven years and not to the date of death at any particular period, for, as pointed out earlier, there is no presumption that death took place at the end of seven years or at any particular time within that period of seven years.” (v) In yet another judgment of this court reported in 2001 (3) CTC 731 in the case of The Director, Department of Animal Husbandry, Madras and two others vs. A.Kaliyamurthy, it is held as under: “11. In my view, the date of birth given in the horoscope ought not to have been accepted. It is well established that the horoscope by itself has very little evidential value. In 1981 the plaintiff's department people called for explanation from the plaintiff with regard to his date of birth. This was followed by an inspection of the Service Register of the plaintiff in June, 1984. After inspecting the Service Register, on 12.06.1984 the plaintiff wrote to the Assistant Director of the Department that his date of birth has been corrected as 25.10.1924. According to the plaintiff, the figure 7 has been corrected as 4. A perusal of the Service Register marked as Ex.B-1 shows his date of birth as 25.10.1924, in the Service Roll, and in the Service Book, there is some correction made with regard to the year of birth. Though one of the witnesses on the side of the defendants has said that it looked like 6 corrected as 4, still by itself it cannot mean that the plaintiff's date of birth was 25.10.1927. The person, who spoke to to the correction apparently was not responsible for any such correction. It has to be noted that if the plaintiff's date of birth were to be taken as 1927, he would not have been able to join service in 1943 since he would not have completed 18 years https://hcservices.ecourts.gov.in/hcservices/ of age. The Courts below have been persuaded to hold in favour of the plaintiff on the basis of this alleged correction in his Service Book. The fact remains that the plaintiff's services were regularised in 1972. Rule 49(c) of the Rules provides for a five year period to have the records relating to a person's date of birth corrected. Apparently, the plaintiff had not approached the authorities within the stipulated time.” (vi) The Supreme Court in 2002 (1) CTC 240 in the case of Darshan Singh and others vs. Gujjar Singh (dead) by Lrs. and Ors., has held as under: “5. In Sri Vidya Mandir Education Society (Regd.) vs. Malleswaram Sangeetha Sabha and others, 1995 Supp. 1 SCC 27, this court considred provisions of Sections 107 and 108 of the Evidence Act and after noticing the decision of the Privy Council in Lal Chand Marwari vs. Machant Ramrup Gir and another, AIR 1926 PC 9 held that there is no presumption of exact time of death under Section 108 of the Evidence Act and the date of death has to be established on evidence by person who claims a right for establishment of which that fact is essential. The case in hand as plaintiff claimed succession to the estate of Jagjit Singh, and therefore, the burden was on him to prove the date of death. There is neither any pleading nor an averment by the plaintiff-respondent regarding date of death of Jagjit Singh. The view of the High Court that as Jagjit Singh was not heard for more than 7 years and, therefore, the date of filing of the present suit would be considered as date of death of Jagjit Singh is contrary to above provisions of law. 6. In view of the settled position of law, the succession of plaintiff-Gujar Singh to the estate of Jagjit Singh would open only on the death of Jagjit Singh. As plaintiff-Gujjar Singh could not prove the date of death of Jagjit Singh, therefore, his succession to his estate did not open to on the date of filing of the suit. We, therefore, hold that the above findings of the appellate courts are not sustainable in law.” (vii) In yet another judgment of the Supreme Court reported in (2005) 3 SCC 702 in the case of State of Punjab vs. Mohinder Singh, it has been held as under: “11. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants https://hcservices.ecourts.gov.in/hcservices/ to press it into service to prove its authenticity. In fact, a horoscope to be treated an evidence in terms of Section 32 clause (5) must be proved to have been made by a person having special means of knowledge as regards authenticity held to be inadmissible in proof of age.” (viii) In 2007 (2) CTC 553 in the case of Govindarasami Naidu vs. Shanmuga Nattar and another, this Court has held as under: “The age of a person, in an Election Petition has to be determined not only on the basis of the materials placed on records but also upon taking into consideration the circumstances, attending thereto. The initial burden to prove the allegations made in the Election Petition although was upon the election petitioner but for providing the facts which were within the special knowledge of the respondent, but burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of onus of proof becomes academic. (See Union of India and others vs. Sugauli Sugar Works (P) Limited, 1976 (3) SCC 32 para 14 and M/s.Cox and Kings (Agents) Limited vs. Their Workmen and others, AIR 1977 SC 1666 para 36. Furthermore, an admission on the part of a party to the lis shall be binding on him and in any even a presumption must be made that the same is taken to be established.” 7. Learned counsel for the respondents has submitted that the plaintiffs are the children of Palanathal, the daughter of Vayyapuri. He contended that the Will ought to have been created by the 1st defendant and that it is a forged one. According to the learned counsel, the judgment of the Court below is in accordance with law and they same does not warrant any interference. 7a. Learned counsel for the respondents to support his contentions has relied on the following decisions: (i) The Supreme Court in AIR 1959 SC 443 in the case of H.Venkatachala Iyengar vs. B.N.Thimmajamma and others has held as under: “20. There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of https://hcservices.ecourts.gov.in/hcservices/ relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged. Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is require to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pendantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.” (ii) This Court in 1978 MLJ 460 in the case of The Secretary to Government, Home Department and another vs. T.V. Hari Rao has held as under: https://hcservices.ecourts.gov.in/hcservices/ “6. ... Statements contained in a pedigree or horoscope would certainly come under section 32(5) provided the other conditions are satisifed. A statement in a horoscope need not necessarily be ore made at about the time of the birth of the child to attact section 32 (5). Even if it is made subsequently it would be admissible provided it had been made before the question in dispute was raised and the other conditions mentioned earlier are satisfied. Therefore, on the ground that the horoscopes, Exhibits A-1 and A-2 had not been written at about the time of the birth of the child it cannot be sait that they are not admissible in evidence under section 32 (5). If the said horoscopes constituted a statement as contemplated under section 32(5), then undoubtedly they would be admissible in evidence.” (iii) In 1997 (3) L.W. 673 in the case of Govindan Chettiar (died) vs. Akilandam alias Seethalakshmi and 24 others, this Court has held as under: “The only asset belonging to the deceased is alleged to have been bequeathed to the appellant, and he has also taken active part in the execution of the Will. In cases where the legatee has taken active part in the execution of the Will and the entire asset is also taken by him, better evidence is required regarding execution of the Will. ...” (iv) In yet another decision reported in AIR 2005 SC 1868 in the case of State of Punjab vs. Mohinder Singh, the Supreme Court has held as under: “11. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32, Clause (5) must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time, etc. mentioned therein. In that context horoscopes have been held to be inadmissible in proof of age. ... 12. On the contrary, the statement contained in the admission register of he school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under Section 32, Clause (5) unless it is established by unimpeachable contrary material to show that it is inherently improbable. The time of one's birth relates to the commencement of one's relationship by https://hcservices.ecourts.gov.in/hcservices/ blood and a statement therefore of one's age made by a person having special means of knowledge, relates to the existence of such relationship as that