IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.09.2011 CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN S.A.NO.420 OF 2011 AND M.P.NO.1 OF 2011 Pachai Ammal @ Manonmani ... Appellant/Plaintiff Vs. 1.Mr.Palani 2.Mrs.Thenmozhi 3.Mrs.Gandhimathi 4.Mrs.Premavathi 5.Mr.Muthuvel 6.Mr.Vetrivel, 7.Mr.Ramalingam 8.Mrs.Valli ...Respondents/Defendants Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 13.12.2010, passed in A.S.No.5 of 2009, on the file of the Learned Additional District Judge, Fast Track Court No.1, Tindivanam, in reversing the judgment and decree dated 26.2.2007 passed in O.S.No.90 of 2000, on the file of the Learned District Munsif, Vanur. For Appellant : Mr.A.K.Kumaraswamy For Respondents: Mr.D.Bharatha Chakaravarthy for M/s.Sai Bharath & Ilan JUDGMENT The plaintiff is the appellant herein and she filed the suit for partition. The case of the appellant/plaintiff was that Item Nos.1 and 2 were the properties of one Lakshmi Ammal, the mother of the plaintiff and item No.3, was the property belonging to the family and item No.4, also belonged to the family purchased in the name of the defendants 1 and 2. As the plaintiff is the daughter of one Somasundaram and Lakshmi Ammal and the defendants 1, 2 and 4 are the sons and the third defendant is the another daughter of the said Somasundaram and Lakshmi Ammal, the plaintiff filed the suit for partition. https://hcservices.ecourts.gov.in/hcservices/ 2. The first defendant contested the suit stating that item Nos.1and 2 were the properties of the mother and she executed a Will in favour of his wife, the fifth defendant, bequeathing item Nos.1and 2 of the suit properties and therefore, the plaintiff cannot claim any share in item Nos.1 and 2. In respect of item No.3, it was admitted that the properties belonged to the family and even in the year 1980, it was divided by the sons and they are enjoying the same, since 1980. Therefore, in respect of Item No.3, the plaintiff cannot claim any share and in respect of item No.4, the property was purchased by the defendants 1 and 2, and it is their separate property and hence, the plaintiff cannot claim any right in that property also. 3. The fifth defendant also contested the suit stating that in respect of item Nos.1 and 2, the owner viz., Lakshmi Ammal, executed an unregistered Will in her favour and therefore, she is the owner of the properties in item Nos.1 and 2 and the plaintiff is not entitled to claim any share in the property. 4. The trial Court decreed the suit for partition holding that the Will was not proved by the defendants 1 and 5 and the evidence of D.W.3, the second defendant, who alleged to have attested the Will, cannot be accepted and the fourth item of property was admittedly purchased in the name of the defendants 1 and 2, for which, consideration was paid by the father and therefore, the fourth item of property is also available for partition and admittedly, third item of property belonged to the family and in the absence of any division, the plaintiff is entitled to partition and held that in respect of item Nos.1 and 2, the plaintiff is entitled to 1/5 and in respect of item Nos.3 and 4, she is entitled to 1/20 share and also granted the decree of mesne profit of Rs.3,000/- 5. The First Appellate Court reversed the findings of the trial Court and held that the Will was properly proved by the fifth defendant through one of the attesting witness-D.W.3 and therefore, the plaintiff cannot claim any share in item Nos.1 and 2 and the properties in item Nos.3 and 4, are also not liable for partition, as they are the properties of the defendants 1, 2 and 4 and hence, the plaintiff is not entitled to any share in the property and allowed the appeal and dismissed the suit. The First Appellate Court also relied upon Exs.B8 and B32, to hold that the plaintiff is not entitled to any share in respect of item Nos.3 and 4. Hence, the Second Appeal. 6. Mr.A.K.Kumarasamy, the learned counsel for the appellant submitted that the First Appellate Court, without properly appreciating Exs.B8, B10 and B32, erred in holding that item Nos.3 and 4, are the properties belonging to the defendants 1, 2 and 4 and https://hcservices.ecourts.gov.in/hcservices/ the plaintiff has no right over the same. The learned counsel submitted that Ex.B8, was the suit filed by the deceased/first defendant against his brother Ramalingam, the fourth defendant in the present suit and that was in respect of the properties situate in Omandur Village, in S.Nos.162/3, 163/5, 163/6, 164/15, 161/13 and the properties in Kondamur Village in Vaanur Taluk, in S.No.54/3, having an extent of 0.83 cents of land. But, the third item of the suit property is situate in Aruvapakkam Village in Old S.No.53/3, New S.No.34/3 and without appreciating the difference in Village, the First Appellate Court was carried away by S.No.54/3, found as sixth item as per Ex.B8, and held that under Ex.B8, item No.3 of the suit property was declared to be the property of the first defendant. Further, under Ex.B10, 3 acres of land, out of the total extent of 4.34 acres was purchased in the name of the defendants 1 and 2, and it is specifically stated in the sale deed that for the execution of the sale in favour of the defendants 1 and 2, the sale consideration was received from their father. 7. The learned counsel for the appellant further contended that the Will alleged to have executed by the mother in favour of the fifth defendant cannot be accepted and no reason was stated in the Will for disinheriting the sons and daughters and giving the property to the daughter-in-law. The evidence of D.W.3, the second defendant also cannot be accepted, as he supported the first defendant in the earlier litigation and he was benefitted in that and therefore, the evidence of D.W.3, who is an interested witness should not be believed. The learned counsel also submitted that admittedly the Will was not marked through D.W.3, and in the chief examination, D.W.3, did not identify the Will-Ex.B3, or identified the signature found in the Will and considering all these aspects, the trial Court has rightly held that the Will was not proved and therefore, the judgment of the Lower Appellate Court has to be set aside. 8. On the other hand, the learned counsel for the respondents submitted that the First Appellate Court having been satisfied with the evidence of D.W.3, one of the attesting witness, held that the Will was proved and there is no neccessity to give reason for bequeathing the property to the daughter-in-law and having regard to the fact that the Will was attested by one of the sons of Lakshmi Ammal, the genuineness of the Will cannot be disputed, as the son, who is otherwise, entitled to the share in the property has come forward to give evidence, relinquishing his right over the same. Therefore, the Will was a genuine one and considering that, the Lower Appellate Court has held that under the Will, the properties of the mother were bequeathed in favour of the fifth defendant and therefore, the plaintiff is not entitled to any share in respect of item Nos.1 and 2. https://hcservices.ecourts.gov.in/hcservices/ 9. The learned counsel for the respondents further contended that in respect of item 3 of the suit property, the First Appellate Court rightly relied upon Ex.B8, to arrive at a conclusion that in Ex.B8, the property was declared to be property of the first defendant and in Ex.B8 also, sixth item of property relates to the third item of property in the present suit and therefore, the plaintiff cannot claim any right over the property. The learned counsel further submitted that insofar as item No.4 is concerned, though under Ex.B10, it is stated that the sale consideration was provided by the father and the sale deed was executed towards the amount received from the father in the name of the defendants 1 and 2, i.e., in respect of 3 acres of land and the total extent of item No.4 is 4.34 acres and the remaining extent was purchased in the name of the eighth defendant, as evidenced by Exs.B32 and the eighth defendant is the son of the first defendant and therefore, it cannot be contended that the plaintiff is entitled to any share in the fourth item also and the Lower Appellate Court rightly dismissed the suit and allowed the appeal. 10. On the basis of the submissions made by the learned counsel for the appellant, the following substantial questions of Law are framed for consideration:- i)Whether the Lower Appellate Court was right in holding that the Will-Ex.B3, was proved by the fifth defendant? ii)Whether the Lower Appellate Court was right in holding that the plaintiff is not entitled to any share in item Nos.3 and 4 of the suit properties? 11. There is no dispute regarding the relationship between the parties. Admittedly, the plaintiff and defendants 1 to 4 are the children of one Somasundaram and Lakshmi Ammal and the plaintiff and the third defendant are the daughters and the defendants 1, 2 and 4 are the sons, the fifth defendant is the wife of the first defendant. Further, it is also not in dispute that item Nos.1 and 2, belonged to the mother/Lakshmi Ammal and item No.3, belonged to the family and item No.4, was purchased in the name of defendants 1 and 2. Insofar as item No.3, is concerned, in the written statement filed by the first defendant, it is stated that even in the year 1980, the father divided the properties among three sons and eversince 1980, three brothers are enjoying the property to the exclusion of the plaintiff and the third defendant and therefore, the plaintiff is not entitled to any share in the item No.3. Therefore, the defendants admitted that item No.3, belonged to the family and according to the defendants, the plaintiff cannot claim any share, as it was already divided. https://hcservices.ecourts.gov.in/hcservices/ 12. Admittedly, no proof was adduced by the defendants to prove the earlier partition. Further, the Lower Appellate Court also did not hold that the plaintiff is not entitled to any share in item No.3, as the same was already divided by the sons. On the other hand, the Lower Appellate Court relied upon Ex.B8, to hold that Ex.B8, the suit in O.S.No.69 of 1999, the third item of the suit property was declared to be property of the first defendant and therefore, the plaintiff cannot claim any right over the property. 13. I am unable to accept the findings of the Lower Appellate Court Judge in respect of item No.3 of the suit property. Admittedly, item No.3, is situate in Aruvapakkam Village, Vanur Taluk and the properties involved in O.S.No.69 of 1999, are situate in Omandur and Kondumur Villages. Item No.6, in O.S.No.69 of 1999, is situate in Kondumur Village in S.No.54/3, having an extent of 0.83 cents. The Lower Appellate Court without noting the differences in Village as stated in Ex.B8 in respect of item No.6, was carried away by the survey number alone and held that under Ex.B8, the property was declared to be the property of the first defendant. Hence, the findings of the Lower Appellate Court is erroneous. Further, the plaintiff was not a party to the suit in O.S.No.69 of 1999 and any decree obtained by the first defendant against the fourth defendant, who was the sole defendant in O.S.No.69 of 1999, will not bind the plaintiff. 14. Further, as stated supra, the first defendant never contended that he became the owner of item No.3, by virtue of the declaration granted in O.S.No.69 of 1999. Hence, the findings of the Lower Appellate Court that third item of property belongs to the first defendant, as evidenced by Ex.B8, is erroneous and is liable to be set aside. 15. Insofar as item No.4, is concerned, it is admitted that the total extent of item No.4, is 4.34 acres and it is seen from Ex.B10 that 3 acres of land was purchased in the name of defendants 1 and 2. In the sale deed-Ex.B10, it is specifically stated that the sale consideration was the money received from the father. Therefore, as rightly contended by the learned counsel for the appellant that in respect of 3 acres of the property in item No.4, the property cannot be declared as the property of the defendants 1 and 2, as the father has provided the sale consideration and the property was purchased in the name of the defendants 1 and 2 and hence, the defendants 1 and 2, cannot claim any independent right over the same and 3 acres of land in item No.4, purchased under Ex.B10, is the property belonging to the family in which the plaintiff is entitled to a share. In respect of the remaining extent, the learned counsel for the appellant, frankly conceded that the plaintiff cannot have any claim over the same. https://hcservices.ecourts.gov.in/hcservices/ 16. Therefore, in respect of 3 acres of land in item No.4 of the suit property, the plaintiff is entitled to claim share and it cannot be stated that the property in respect of 3 acres of land in item No.4, is the property belonging to defendants 1 and 2 and it is the property belonging to the family and the plaintiff is entitled to a share in the property. Therefore, the substantial question of law No.2, is answered in favour of the appellant and I hold that the appellant is entitled to 1/20 share in item No.3, and 1/20 share in 3 acres of land in item No.4 and in respect of the remaining 1.34 acres in item No.4, the plaintiff is not entitled to any share. 17. We are then concerned with item Nos. 1 and 2. Admittedly, the property in item Nos.1 and 2, belonged to the mother and in the absence of any Will, executed by her, the appellant/plaintiff is entitled to 1/5 share. The specific case of the appellant was that the mother died intestate, whereas, the case of the first and fifth defendant was that the mother executed a Will Ex.B3, in which the item Nos.1 and 2 of the properties were bequeathed to the fifth defendant. To substantiate their contention, the defendants 1 and 5, examined D.W.3, who is the second defendant in the suit and who is one of the attesting witnesses to speak about the due execution of the Will and D.W.4, the Scribe. Therefore, we will have to see whether the Will was proved by the defendants 1 and 5. 18. Admittedly, in the Will-Ex.B3, no reason was stated to disinherit the children and give the property to the daughter-in-law. Further, D.W.3, who is also the second defendant in the suit is one of the attesting witnesses and he supported the first defendant in the suit between the defendants 1 and 2 on one side and the fourth defendant on the other side. Therefore, as rightly contended by the learned counsel for the appellant that he has got interest towards the first defendant and hence, his evidence cannot be believed, as he happens to be the interested witness. Though, the Will cannot be suspected on the ground that no reason is stated in the Will to disinherit the children, having regard to the presence of daughters and sons, it is unnatural for a mother-in-law to execute the Will in favour of the daughter-in-law without assigning any reason for giving the property in her favour. 19. It is not the case of the defendants that other sons were provided with other properties and the first defendant was not provided with enough properties or the first defendant and his wife viz., the fifth defendant have taken care of the mother at her old age and out of love and affection and as a consideration for the care they had taken, the Will was executed. It was only stated that "you are my daughter-in-law and therefore, I am executing the Will in respect of the properties stated in the Will”. https://hcservices.ecourts.gov.in/hcservices/ 20. Further, D.W.3, the attesting witness, did not identify the Will or the signature found in the Will in his chief examination. In the cross-examination, he has only stated that in Ex.B3, two items of property were mentioned. Further, the Will was dated 30th September, 1982 and admittedly, the Testatrix, died within a month and there was no evidence adduced by the parties that the Will was made public immediately after the death of Lakshmi Ammal. D.W.3, also did not state that immediately after the death of the mother, the Will was made public to the knowledge of the plaintiff and other sister. Therefore, having regard to the fact that D.W.3, did not identify the thumb impression found in the Will, alleged to have made by the Testatrix, nor his own signature in the Will and no reason was stated for giving the property to the daughter-in-law, when the Testatrix was having sons and daughters and D.W.3, is an interested witness in favour of the first defendant, the trial Court has rightly held that the Will, was not proved. 21. The Lower Appellate Court without assigning any reason simply held that as per the recitals in the Will, the Will was executed by the Testatrix, while she was in a sound and dispossessing state of mind and it was attested by D.W.3 and therefore, the Will was proved. Hence, the findings of the Lower Appellate Court regarding the Will is erroneous and according to me, the defendants 1 and 5, failed to prove the due execution of the Will and hence, the substantial question of law No.1 is answered in favour of the appellant. As the Will is not proved, the appellant is entitled to 1/5 share and that was rightly considered by the trial Court. 22. In the result, the Second Appeal is partly allowed and the judgment and decree of the trial Court in respect of item Nos.1 to 3, are confirmed and in respect of item No.4, the judgment and decree of the trial Court is modified to the effect that the appellant is entitled to 1/20 share in respect of 3 acres of land in Item No.4, and in respect of the remaining extent, the appellant has no right. In the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sd https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional District Judge, Fast Track Court No.1, Tindivanam. 2.The District Munsif, Vanur. 3.The Section Officer, VR Section, High Court, Madras 1 CC to M/s.Sai, Bharath & Ilan, Advocate, SR.59910 1 CC to Mr.A.K.Kumarasamy, Advocate, SR.59906 S.A.No.420 of 2011 SS (CO) RH (2.1.12) https://hcservices.ecourts.gov.in/hcservices/