IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21-10-2008 CORAM: THE HON'BLE MR.JUSTICE K.KANNAN A.S.No.131 of 1994 and Tr.A.S.No.889 of 1995 1.Subrmaniam 2.Thamilarasu 3.N.Selvamani ...Appellants in both appeals /Plaintiff in both suits. Vs. 1.V.Kaliyammal 2.R.Pavayee(died) 3.R.Rathinam 4.K.Pappathi 5.R.Kandasamy Respondents 4 and 5 brought on record as LRs. of the deceased second respondent vide order of Court dated 30.6.2008 made in CMP.No.s754 to 756/07 ...Respondents in A.S.131/94/defendants 1.Kaliyammal 2.Ramasamy 3.Pavayee Ammal 4.Kandasamy 5.A.Ramasamy 6.Rathinam 7.Ravi ..Respondents in Tr.A.S.889/95 /defendants A.S.NO.131 OF 1994: This appeal filed under Section 96 of the Code of Civil procedure against the Judgment and decree dated 28.10.1993 rendered in O.S.NO.182 OF 1991 on the file of learned Sub Judge, Namakkal. Tr.A.S.No.889 of 1995: This appeal is filed against the Judgment and decree passed in O.S.NO.26 of 1992 dated 20.10.1993 by the Subordinate Judge, Namakkal. https://hcservices.ecourts.gov.in/hcservices/ For Appellants in both A.S. : Mr.T.Dhanasekaran Respondent No.1 in A.S.No.131/94: Mr.S.Sethuraman Senior Advocate for Mr.K.Kuppuswamy For Respondent 2 to 5: No appearance For Respondents in Tr.A.S.889/95: No appearance. --- J U D G M E N T The connected appeals arise out of the common judgment rendered in O.S.No.182 of 1991 and O.S.NO.510 of 1991. 2. The status of the parties in appeals shall be as the array of parties in O.S.No.510 of 1991 which was later numbered as O.S.NO.26 of 1992 on the file of Sub Court, Namakkal. 3. The admitted case is that the suit properties belonged to one Venkatachala Gounder. His wife Kaliammal was the first defendant in the suit and the first plaintiff in O.S.No.182 of 1991. Kaliammal had one son Natesan and two daughters Balayee and Rathinam who are defendants 3 & 6 in O.S.NO.26 of 1992. They are plaintiffs 2 and 3 in O.S.NO.182 of 1991. Natesa Gounder's children were Subramanian, Tamilarasan and Selvamani who are plaintiffs in O.S.No.26 of 1992 and defendants 1 & 2 in O.S.No.182 of 1991. 4. The suit had been filed by the plaintiffs laying claim to the properties as beneficiaries under the will alleged to have been executed by the grand-father Venkatachala Gounder on 3.1.1987 and marked as Ex.A2. The plaintiff's contention is that Venkatachala Gounder died on 25.3.1991 as evidenced through Ex.A2. The grand father had misgiving with his son who was a profligate and therefore opted to make his grand-children the beneficiaries. He had referred to in the will his reasons for dis-inheriting his daughters by stating that they had been adequately provided for at the time of marriage and therefore he had thought fit not to make any provision for them. As regards his wife, the testator wished that the grand-children would take care of his wife, if she survived him. The Will, according to the plaintiffs, came to affect on the death of their grand- father and since the defendants 1,3 and 6 laid claim to the properties by filing the suit in O.S.No.182 of 1991 for partition, they were attempting to disturb their possession and hence the plaintiffs were compelled to file a suit for declaration and for injunction,. https://hcservices.ecourts.gov.in/hcservices/ 5. The suits were taken up for joint trial and the trial Court found the most vital issue relating to the genuineness of the Will that the testament was not true and the plaintiffs' suit was liable to be dismissed. 6. Having regard to the fact that the property vested in the estate of the grand father Venkatachala Gounder, a suit for partition, as claimed by daughters was decreed. The plaintiffs who are aggrieved by the common judgment have filed the appeals before this Court. 7. The only issue to be seen is whether the Will dated 3.1.1987 is true. The appellant argued that the three lines of reasoning adopted by the trial court viz., non provision for the wife in the Will, non registration of the Will and non- examination of one of the witness in the Will, are all wrong. The Court had specifically stated in the Will that his wife has to be taken care of by the grand-children and there was nothing suspicious about not making any provision for the wife, under such circumstances. According to the appellants, the Will itself was not required to be registered and it need not have been an aspect to be stated against the plaintiffs' claim as regards the genuineness of the will. One of the attestors as well as the scribe had been examined and there was no requirement in law to examine each one of the witness. According to the counsel for appellant, on that ground also, the reasoning of the trial court was erroneous. 8. I have gone through the entire evidence of all the witnesses and the reasoning of the trial Court. The most significant aspect which has been referred to by the trial Court as the suspicious circumstances regarding the genuineness of the document is the fact that the defendants issued a notice prior to the institution of the suit on 17.4.1991 under Ex.A2, but the plaintiffs did not reply for the same. The explanation offered by them was that one of them was busy on his job of going on long trip in a lorry and therefore he could not reply, was considered by the trial Court as most artificial. The second aspect of suspicion is that the beneficiaries had made no publicity about the Will after the death of the grand father, till the statement was filed in the suit for partition filed by the defendants three months later. This conduct was exceedingly suspicious for it is inconceivable that the son and the grand sons could have omitted to make a mention about the will soon after the grand-father's death. The grand father was residing in a place near Namakkal and the Will was executed 50 Kms away at Salem at the residence of Advocate. No evidence has been tendered that the testator had previously entrusted any case https://hcservices.ecourts.gov.in/hcservices/ with the particular advocate to have enormous confidence in him and to opt to go all the way, when he had a licenced scribe to write the will on his behalf. Indeed, PW2 was the scribe who was reported to be well versed with the Court affairs and it was in evidence that he has attended several cases and that he was adept in draft documents. The option to go to a farther place to make a Will is also not properly explained. Non registration or registration itself will make no difference, since the law does not require the will to be registered. But, the testator who could not have thought of securing perfection to the document to go all the way to Salem to obtain for draft of the Will, could not have merely left without even considering whether the Will was to be registered or not. It seems again unnatural that there could have been no talk about the desirability or otherwise of the registration of the instrument. The trial Court also referred to the fact that the so called attempt for changing the patta in the names of the plaintiffs had not been effected till after the institution of the suit and the defendants themselves were not aware of any such attempt. It is also not clear whether the plaintiffs had made any mention of the will before the revenue authorities for obtaining mutation. 9. On a conjoint consideration of all the relevant facts, the trial Court has come to the conclusion that the Will is not genuine and the plaintiffs claim to exclusive title from the basis of such will could not be sustained. I am not persuaded to take any other view, having regard to the unassailable nature of the judgment and the comprehensive finding with reference to every aspect that was relevant for consideration regarding the genuineness of the Will. I therefore, affirm the finding of the Court below and dismiss the appeals as devoid of any merits. Having regard to the fact that the parties are close relatives, there shall be no direction as to costs. VJY Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Sub Judge, Namakkal. KA(CO) SR/18.11.2008 JUDGMENT IN A.S.NOS.131 OF 1994 & TR.A.S.NO.889 OF 1995 https://hcservices.ecourts.gov.in/hcservices/