IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 14-03-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1688 of 1996 Veluchamy .. Appellant/Appellant Versus Thulasiammal .. Respondent/Respondent PRAYER: Appeal against the judgment and decree, dated 12.01.1996, made in A.S.No.164 of 1994, on the file of the II Additional District Court, Coimbatore, confirming the judgment and decree, dated 08.02.1994, made in O.S.No.1747 of 1986, on the file of the II Additional District Munsif Court, Coimbatore. For Appellant : Mr.K.Govi Ganesan For Respondent : Mr.T.M.Hariharan J U D G E M E N T The second appeal has been filed against the judgment and decree, dated 12.1.1996, made in A.S.No.164 of 1994, on the file of the II Additional District Court, Coimbatore, confirming the judgment and decree, dated 08.02.1994, made in O.S.No.1747 of 1986, on the file of the II Additional District Munsif Court, Coimbatore. 2. For the sake of convenience the parties in the appeal are referred to as they have been arrayed in the suit in O.S.No.1747 of 1986. 3. The defendant in the suit O.S.No.1747 of 1986, is the appellant in the present second appeal. The suit in O.S.No.1747 of 1986 has been filed by the plaintiffs for division of the suit properties, for delivery of possession, for mesne profits and costs. 4. It has been stated by the plaintiff that the plaintiff and the defendant are the children of one Nanjappa Gounder and Angammal. Nanjappa Gounder had died on 06.08.1978 and his wife Angammal had pre- deceased him, on 10.03.1974. On the date of his death, Nanjappa Gounder was a member of a Hindu Joint family which possessed the properties https://hcservices.ecourts.gov.in/hcservices/ described in the schedule forming part of the plaint. The plaintiff and the defendant were the only Class I heirs of Nanjappa Gounder and therefore, she was entitled to ¼th share in all the properties. In spite of repeated requests the defendant had refused to recognise the right of the plaintiff in the suit property. Therefore, the plaintiff had issued a legal notice to the defendant, on 05.07.1986. The defendant had sent a reply, on 17.7.1986, based on false allegations and incorrect facts. The defendant had set up a Will, dated 25.7.1978, in his favour, by fabricating the documents. Since Nanjappa Gounder had been suffering from cancer of the throat, he did not have a sound and disposing state of mind to execute the Will as claimed by the defendant. The alleged will, dated 25.07.1978, is neither true nor valid as it has been fabricated only to defeat the rights of the plaintiff in the suit property. In June 1986, a panchayat had been held in which the defendant had accepted the rights of the plaintiff in the property left behind by Nanjappa Gounder and he had offered 12 sovereigns of gold jewels to the plaintiff in lieu of the plaintiff's share in the properties. The said agreement had been recorded in writing, on 12.6.1986, and it had been signed by the defendant and other witnesses. Later, since the defendant had not agreed to be bound by the decision of the panchayat, it could not be implemented. The defendant had not disclosed the existence of the alleged Will, dated 25.07.1978, during the panchayat. It was claimed to be in existence for the first time, on 17.07.1986. Since the defendant is appropriating all the incomes from the lands, the plaintiff is entitled to 1/4th share of the net annual income of Rs.15,000/-. 5. In the written statement filed by the defendant it has been said that the property in Item I of the plaint schedule is in two different blocks. The first block measuring 3.83 acres is comprised in S.No.321/1B (3.77 acres) and 321/1A (66 cents) with a tiled residential house, bearing Door No.3/115, a cattle shed, a separate Well fitted with 75 HP electric motor and pump set in S.C.No.446. The second block lies on the north of the lands of Chinna Gounder with an extent measuring 3.04 acres comprised in S.Nos.335/1 and 334/2, with a common 1/3rd share in the Well situate on the south-eastern side fitted with 7.5 HP electric motor in the service connection No.127. 5.1 Since, Nanjappa Gounder had sold 1.40 acres of the lands belonging to his family in Oddarpalayam village for taking care of the marriage expenses of the plaintiff and since the plaintiff had been provided with 30 sovereigns of gold jewels and house hold articles and other materials worth Rs.15,000/-, during the year 1975, the deceased Nanjappa Gounder, had executed a Will in favour of the defendant with regard to his remaining properties. The Will, dated 25.07.1978, had been executed by the deceased Nanjappa Gounder while he was in a sound disposing state of mind, out of his own free will and volition. Since the plaintiff was aware of the said Will, dated 25.07.1978, executed by her father in favour of the defendant, she had chosen not to make any claim in the suit property from the year 1978, till the date of the https://hcservices.ecourts.gov.in/hcservices/ filing of the suit in the year 1986. As the last Will and testament of the deceased Nanjappa Gounder, he had bequeathed his common ½ share in the suit property in favour of the defendant, by his Will, dated 25.07.1978. It has also been stated that there was no panchayat or Panchayat Muchelika in the month of June 1986. Since the plaintiff has no share in the suit properties, the suit filed by her is to be dismissed. 6. Based on the pleadings, the trial Court had framed the following issues for consideration: 1) Whether the plaintiff is entitled to 1/4th share in the suit property as claimed by her? 2) Whether the plaintiff is entitled to the damages as claimed by her? 3) What other reliefs, the plaintiff is entitled to? 7. The witnesses examined on behalf of the plaintiff had stated that the plaintiff had been promised, in the Muchelika signed by the defendant, that she would be given 12 sovereigns of gold jewels or in the alternative the equivalent amount of money in lieu of the share in the suit property she was entitled to. The panchayat Muchelika has been marked as Ex.A-5. However, the defendant had contended that the signature in the panchayat Muchelika is not his. On comparison of the signatures of the defendant, the trial Court had found that the signature found in the panchayat Muchelika is that of the defendant. However, the trial Court had found that the Will Ex.B-2, dated 25.07.1978, said to have been executed in favour of the defendant has not been mentioned in the panchayat Muchelika, marked as Ex.A-5. Therefore, the Will said to have been executed by the deceased Nanjappa Gounder, on 25.07.1978, cannot be accepted. 8. With regard to issue No.2, the trial Court had held that the plaintiff is to initiate separate proceedings for her claim regarding the damages. With regard to the third issue, the trial Court had held, that the defendant is to allot 1/4th share in the first item of the suit property in favour of the plaintiff. With regard to the second item of the suit property, the suit had been dismissed. 9. Aggrieved by the judgment and decree of the trial Court, dated 08.02.1994, the defendant had filed an appeal before the first Appellate Court in A.S.No.164 of 1994, on the file of the II Additional District Judge, Coimbatore. 10. The first Appellate Court had framed the following issues for consideration: 1) Whether the father of the plaintiff and the defendant, namely, Nanjappa Gounder had executed a Will, dated 25.07.1978, in favour of the defendant, with regard to his https://hcservices.ecourts.gov.in/hcservices/ share of the suit property to be enjoyed by the defendant after his death. 2) Whether the defendant/appellant had written a document, dated 12.06.1986, agreeing to give the plaintiff 12 sovereigns of gold jewels or its equivalent amount to the plaintiff, in lieu of her share in the suit properties? 3) Whether the plaintiff/respondent is entitled to 1/4th share in Item Nos.1 and 2 of the suit properties? 4) What is the relief the appellant is entitled to? 11. With regard to issues No.1 and 2, it was held that late Nanjappa Gounder had not executed the alleged Will, dated 25.07.1978, in favour of the defendant. It was held that the defendant had written a document, dated 12.06.1986, marked as Ex.A-5, accepting the rights of the plaintiff in the suit properties. 12. With regard to Issue No.3, the first Appellate Court had held that the plaintiff was entitled to 1/4th share in the first item of the suit properties and that she would not be entitled to a share in the second item of the suit property, which is a residential house in which the defendant is living. Thus, the first Appellate Court, by its judgment and decree, dated 12.01.1996, had confirmed the judgment and decree of the trial Court, dated 08.02.1994. 13. Aggrieved by the judgment and decree of the Courts below, the defendant had filed the present second appeal raising the following substantial questions of law: 1. Whether the genuineness and validity of the Will Ex.B- 2 the execution of which has been properly proved, can be doubted, even if the legatee (appellant) subsequent to Ex.B2 Will had agreed to give 12 sovereigns of gold or its money equivalent towards the share of the daughter (respondent) of the Testator in the properties bequeathed and failed to keep up his promise? 2. Whether the judgment of the Courts below are perverse and patently erroneous." 14. In view of the submissions made by the learned counsels appearing for the parties concerned and on analysing the records available, this Court is of the considered view that the Courts below had come to the right conclusions based on the evidence available on record. Both the Courts below have concurrently found that sufficient evidence is not available to prove the execution of the Will, dated 25.07.1978, marked as Ex.B-2, alleged to have been executed by the deceased Nanjappa Gounder. It has also been found by the Courts below that the defendant had written a document, dated 12.06.1986, marked as Ex.A-5, accepting the rights of the plaintiff in the suit properties. In such circumstances, the Courts below had found that the plaintiff is entitled to 1/4th share in the first item of the suit properties. Thus, https://hcservices.ecourts.gov.in/hcservices/ the suit filed by the plaintiff had been decreed by the trial Court by its judgment and decree, dated 08.02.1994, and confirmed by the first Appellate Court by its judgment and decree, dated 12.01.1996. 15. It is well settled that, under ordinary circumstances, this Court does not interfere with the concurrent findings of the Courts below, which are based on facts, as held by the Supreme Court in Gurdev Kaur and others V. Kaki and others (2006(4) L.W. 942). As this Court does not find sufficient reasons to interfere with the conclusions arrived at by the Courts below, the second appeal stands dismissed confirming the judgment and decree of the Courts below. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1. The Second Additional District Judge, Coimbatore. 2. The Second Additional District Munsif, Coimbatore. 3. The Record Keeper, V.R.Section, High Court, Madras. 1 cc To Mr.T.M.Hariharan, Advocate, SR.14777. S.A.No.1688 of 1996 MRD(CO) RVL 24.06.2008 https://hcservices.ecourts.gov.in/hcservices/