IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 03.02.2011 CORAM: THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN S.A. NO. 1070 OF 2000 1. Rukkammal 2. Yashoda 3. Salammal ... Appellants No. 1 to 3/ Plaintiffs No. 1 to 3 4. Govindammal ... Appellant No.4/ Plaintiff No.5 5. Lakshmi 6. Minor Selvi 7. Minor Sampath (Minors 6 and 7 represented by N.F. 4th appellant.) ... Appellants No. 5 to 7/ Plaintiff Nos.7 to 9 ..vs.. 1. Mottaiyammal @ Gengiammal ... 1st Respondent/ 1st Defendant 2. Minor Mangeswari 3. Minor Manga 4. Minor Kumar (Minors 2 to 4 represented by Father and natural guardian Murugesan) ... Respondents 2 to 4/ Defendants 2 to 4 5. Venkatesan ... 5th Respondent/ 6th Plaintiff Second Appeal filed under Section 100 of Civil Procedure Co against the Judgement and Decree dated 16.12.1999 made in A.S.No.93 1998 on the file of the I Additional District Judge-cum-Judici Magistrate, Dharmapuri by reversing the Judgement and Decree dat https://hcservices.ecourts.gov.in/hcservices/ 20.4.1998 made in O.S.No.130 of 1992 on the file of the Subordina Judge's Court, Krishnagiri. For Appellants ... Mr. S. Parthasarathy, Senior Counsel for M/s Sarvabhauman Associates For Respondent No.1 ... Mr. S.Rajasekar J U D G E M E N T The plaintiffs 1 to 3, 5 and 7 to 9 in O.S.No.130 of 1992 on the fi of the Subordinate Court, Krishnagiri are the appellants. 2. Originally four plaintiffs filed a suit for partition claimi 4/6th share in the suit properties. The case of the plaintiffs was th the properties are the self acquired properties of Munia Naicker Peddappan, their father who died on 7.10.1968 intestate and the plaintif 1 to 4, the 1st defendant and the mother of the defendants 2 to 4 were t daughters of late Munia Naicker @ Peddappan and as their father di intestate, each of them entitled to 1/6th share in the suit properties. 3. The 1st defendant contested the suit stating that their father d not die intestate as alleged by the plaintiffs and when he was in a sou disposing state of mind, he executed a Will dated 7.1.1963 bequeathing t suit properties in favour of the 1st defendant, as the 1st defendant was n provided well at the time of marriage and the 1st defendant was looki after the welfare of the father and the Will came into effect after t death of her father and the Will was also accepted by the plaintiffs the Panchayat and therefore the plaintiffs are not entitled to the reli as prayed for. 4. The trial Court Judge disbelieved the Will and decreed the su for partition and the first appellate Court believed the Will and allow the appeal and dismissed the suit for partition. Hence, the Second Appe is filed. 5. The following substantial question of law was framed at the ti of admission of the Second Appeal by this Court: Whether the findi rendered by the lower appellate Court with regard to Ex.B1 Wi overlooking the numerous suspicious circumstances is vitiated ? 6. Mr. S. Parthasarathy, the learned Senior Counsel appearing f the appellants submitted that the evidence of Dws. 1 to 4 would prove th the Will was not the last testamentary disposition of the father and t propounder of the Will the 1st defendant/ 1st respondent had taken acti part in the execution of the Will and there were suspicious circumstanc in the manner of execution of the Will and these factors were n appreciated by the lower appellate Court. Mr. S. Parthasarathy, t https://hcservices.ecourts.gov.in/hcservices/ learned Senior Counsel appearing for the appellants brought to my noti the evidence of Dws. 2 and 3 and submitted that even according to t evidence of Dws. 1 to 3 the father had directed the scribe to write in t Will giving one acre to each daughters namely the plaintiffs 1 to 4 a the mother of the defendants 2 to 4 and in the Will nothing has be mentioned about the properties to be given to the other daughters. It further submitted that all the witnesses on the side of the 1st defenda have deposed that the 1st defendant and her husband were present at t time of execution of the Will and they took active part and as held by o High Court and Hon'ble Supreme Court that when a propounder had tak active part in the execution of the Will that is one of the suspicio circumstances in the execution of the Will and therefore the Will cann be believed and once the Will goes, all the daughters get equal share the properties. The learned Senior Counsel for the appellants relied up the Judgements reported in AIR 2009 Supreme Court 1766 (Bharpur Singh Others v. Shamsher Singh), AIR 2007 Supreme Court 1975 (Benga Behera Another v. Braja Kishore Nanda & Others), 2010 (5) Supreme Court Cases 2 (S.R.Srinivasa and others v. S.Padmavathamma), AIR 2008 Supreme Court 24 (Babu Singh & Others v. Ram Sahai @ Ram Singh) in support of h contention that when there were suspicious circumstances and t propounder had taken active part, the Will cannot be believed. Mr. Parthasarathy, the learned Senior Counsel appearing for the appellan further submitted that though one of the attesting witnesses had giv evidence about the factum of attestation he did not identify his signatu in the Will and in such circumstances, there is no valid attestation a the propounders have not proved the attestation of the Will in the mann known to law and in support of that he relied upon the Judgement report in 1996 II MLJ 596 (Suguna Bai v. Muniammal @ Dhanalakshmi and others 1997 (3) Law Weekly 673 (Govindan Chettiar (Died) v. Akilandam Seethalakshmi and 24 others). 7. Mr. S. Parthasarathy, the learned Senior Counsel appearing f the appellants submitted that the lower appellate Court believed the ca of ouster pleaded by the 1st defendant and when the Will goes all t daughters are entitled to equal share and they are the co-owners and the case of co-owners the enjoyment of properties by one co-owner a among the enjoyment of properties of all co-owners and unless ouster pleaded and proved one co-owner cannot claim title to the exclusion others and in this case no evidence has been let in to prove the oust and he relied upon the Judgements reported in 2002 (2) SCC 62 (Darsh Singh and others v. Gujjar Singh (Dead) by LRs. And others), 2006 (1 SCC 600 (Govindammal v. R.Perumal Chettiar and others). Therefore Mr. S. Parthasarathy, the learned Senior Counsel appearing for the appellan submitted that even according to the evidence of Dws. 1 to 4 t propounder had taken the active part , the wishes of the testator was n reflected in the Will relied upon by the 1st defendant and there is valid attestation for the Will and hence the 1st defendant cannot claim h exclusive right over the suit properties. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned counsel for the 1st respondent Mr. S.Rajasek submitted that the evidence of Dws.1 to 4 cannot be read in isolation a the reading of the evidence of Dws.1 to 4 would make it clear that t Will was executed by the testator voluntarily and even though t propounder namely the 1st defendant and her husband were present at t time of execution of the Will that will not amount to suspicio circumstances, as admittedly the father was living with the 1st defenda and he was taken care of by the 1st defendant and her husband and t reason for excluding the other daughters were also spoken to by t witnesses and the other daughters were given in marriage in an afflue family and the 1st defendant was not given in marriage to a person who affluent and considering all these aspects, the father had decided to gi the suit properties to the 1st defendant and the witnesses have also spok about the Panchayat wherein the plaintiffs admitted the Will and t plaintiffs also admitted in evidence about the Panchayat held as spoken by the witnesses on the side of the defendants and considering all the aspects the lower appellate Court had rightly upheld the Will. 9. Mr. S. Rajasekar the learned counsel for the 1st responde further submitted that even though the attesting witnesses did n identify his signature in the Will, he has spoken about the attestation the Will in evidence and according to Section 63 of the Indi Succession Act, the attestation has been properly proved by t examination of one of the attesting witnesses and therefore it cannot stated that the Will was not properly attested. He further submitt that admittedly the 1st defendant was in exclusive possession of t properties ever since the death of her father in the year 1968 and ti 1992 no steps were taken by the plaintiffs and the mother of t defendants 2 to 4 and it is not the case of the plaintiffs that they we given any share of income from the suit properties and therefore the defendant has also proved the ouster and hence the appellants are n entitled to the relief prayed for. 10. Heard both side counsel. 11. The father Munia Naicker @ Peddappan was the owner of t properties and he had six daughters and he died on 7.10.1968 a admitted. Four daughters filed the suit for partition stating that t father died intestate and they are entitled to 1/6th share each in t suit properties. The 1st defendant disputed the claim stating that t father did not die intestate and he left behind the Will dated 7.1.19 by which the properties were bequeathed to her. Therefore the burden on the 1st defendant to prove that the Will was executed by the fath while he was in a sound and disposing state of mind. 12. Mr. S. Parthasarathy, the learned Senior Counsel appearing f the appellants did not question the sound disposing state of mind of t testator at the time of execution of the Will and as a matter of fa there is no evidence questioning the mental capacity of the testator https://hcservices.ecourts.gov.in/hcservices/ the time of execution of the Will. Therefore, at the time of execution the Will it can be held that the testator was in a good sound a disposing state of mind. Dws.2 and 3 were the attesting witnesses to t Will. The Will is an unregistered one and according to the evidence Dws.2 and 3 that the testator gave instructions to DW4 the scribe a after the scribe read over the Will the testator affixed his thu impression and it was attested by Dws.2 and 3. Dws. 2 and 3 spoke abo the Panchayat and the Muchilika executed in the Panchayat and ga evidence that the other daughters of testator were given one acre each the Panchayat. Dws. 2 and 3 also deposed that the 1st defendant and h husband were present at the time of execution of the Will. DW2 has stat in his evidence that the testator instructed the scribe to write in t Will giving one acre of land to each of the daughters and the remaini properties to be given to the 1st defendant and as per the direction of t testator the scribe had written the Will and that was duly executed a attested. DW2 would further state that the testator had also instruct to the scribe to write in the Will that after his death his last righ should be performed by the 1st defendant and when the scribe questioned t testator the reason for giving lesser extent of properties to oth daughters and giving the major portion to the 1st defendant that w replied by the testator that the other daughters were given 10 sovereig at the time of marriage and therefore they were given one acre and a these were stated in the Will and the Will was read over to the testat and he signed. DW3 the other attesting witness also corroborated t evidence of DW2 with respect to the statement of the testator directi the scribe to write one acre of property to be given to each daughter a the remaining properties to the 1st defendant and also the 1st defenda should take care of the testator till his death. The scribe was examin as DW4 and he also stated that the testator directed him to write in t Will giving one acre each daughter and the remaining properties shall taken by the 1st defendant and he has also written so in the Wil Therefore, from the evidence of DWs. 2 to 4 it is made clear that the defendant was present at the time of execution along with her husband a the testator directed the scribe to write down in the Will his intenti to give one acre of property to other daughters and the remaini properties to the 1st defendant and that was read over and accepted by t testator and thereafter he signed. But a reading of the Will Ex.B1 wou prove that no such wishes of the testator were stated in the Will. The is no reason for the exclusion of other daughters in preference to the defendant and no reason has been stated for giving the entire properti to the 1st defendant. 13. The specific case of the 1st defendant was that the oth daughters were provided well at the time of marriage, she was not giv the same gifts and therefore she was given the entire properties. But evidence of DW1 would admit that the other daughters are also poor peop and they are not rich. When the defendant witnesses 2 to 4 ha specifically stated that the testator had directed the scribe to write the Will about the properties to be given to the other daughters and t https://hcservices.ecourts.gov.in/hcservices/ scribe had also written the same and that was executed and attested by t witnesses, and when those recitals were absent in Ex.B1 it would lead to the presumption that Ex.B1 was not the Will executed by the testat and the Will dictated and executed by the testator was suppressed a another Will was produced by the 1st defendant. Further, it is admitt by all the witnesses on the side of the defendants that the Will w executed in the Sub Registrar's office and no valid reason has been stat for non-registering the Will. Though it is stated by the witnesses th when the Will was executed it was around 5.30 PM and therefore it w decided to have the Will registered on the next day, DW1 did not state a reason for non-registering the Will on the next day. Further, the defendant relied upon Ex.B6 the Muchilika and contended that in t Muchilika the Will was mentioned and the daughters agreed to take one ac and therefore it cannot be contended that the Will was not proved and t plaintiffs and the other daughter Susila had accepted the Will before the Panchayat and hence the Will has been proved and therefore t plaintiffs cannot claim any share . No doubt, DWs. 2 to 4 have spok about the Panchayat Muchilika Ex.B6. But admittedly, in the Panchay Muchilika Ex.B6, the signature of the plaintiffs 1 to 4 and the oth daughter Susila were not obtained. Further the 1st defendant was not ab to state the properties given to other daughter as per the wish of t testator. If the other daughters were given one acre of property decided by the testator, then the case of the 1st defendant would ha been accepted. Admittedly, the plaintiffs and the mother of t defendants 2 to 4 were not given any properties and therefore it cannot stated that the Will was executed by the testator in the manner as alleg by the 1st defendant. Therefore, in the absence of any signature of t plaintiffs 1 to 4 and the mother of the defendants 2 to 4 in Ex.B6 wou also lead to the conclusion that Ex.B6 cannot be relied upon by the defendant and Ex.B6 is also not binding on the plaintiffs. 14. As I have held that having regard to the evidence of Dws.2 to that the Will Ex.B1 was not the Will executed by the testator as t instructions of the testator regarding the properties to be given to oth properties were not found in Ex.B1, I hold that Ex.B1 is not the Wi executed by the testator and the 1st defendant cannot claim any right ov the suit properties under the will. The Judgements relied upon by t learned Senior Counsel for the appellants regarding suspicio circumstances are not applicable to the facts of the case. As I ha held that Ex.B1 Will was not executed by the testator, the 1st defenda cannot claim any right over the suit properties under the Will and t plaintiffs are entitled to the relief prayed for. Therefore, t substantial question of law is answered in favour of the appellants. 15. Hence, the Judgement and Decree of the first appellate Court a set aside and the Judgement and Decree of the trial Court are restored a the Second Appeal is allowed. No costs. kr. https://hcservices.ecourts.gov.in/hcservices/ Sd/- Asst. Registrar / True copy / Sub Asst. Registrar To 1. The Subordinate Judge, Subordinate Court, Krishnagiri. 2. The I Additional District Judge-cum- Chief Judicial Magistrate, I Additional District Court, Dharmapuri at Krishnagiri.. + One CC to M/s.Sarvabhauman Associates, Advocates (SR No.8377) + One CC to Mr.D.Shivakumaran Advocate (SR No.8272) S.A.No. 1070 of 20 JRG(CO) AC(13.5.11) https://hcservices.ecourts.gov.in/hcservices/