IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.02.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit (First Appeal) No.641 of 2007 1. K.P.Uthirasamy 2. K.P.Boopathy .. Appellants [Defendant 1 & 2] Vs. 1. V.Janaki 2. Palaniammal 3. Mylathal 4. Easwari .. Respondents/Plaintiffs 1 & 2 & Defendents 3 & 4 Appeal Suit (First Appeal) filed u/sec.96 of IPC against the judgment and decree dated 25.8.2006 in O.S.No.790 of 2004 on the file of the Additional District Court (Fast Track Court No.III), Coimbatore. For appellants : Ms.P.T.Asha for M/s.Sarvabhauman Associates For respondents : Mr.M.Venkatachalapathy, Senior Counsel for Mr.M.Sriram for RR-1 & 2 RR-3 & 4 – notice served JUDGMENT Appeal Suit (First Appeal) against the judgment and decree dated 25.8.2006 in O.S.No.790 of 2004 on the file of the Additional District Court (Fast Track Court No.III), Coimbatore. 2. The averments in the plaint are as follows: (a) The plaintiffs are the sisters of the defendants. They are the children of Palanisamy Konar and his wife Pongammal. The said Palanisamy Konar and Pongammal are having four daughters and they are the plaintiffs and defendants 3 and 4 and the sons are defendants 1 and 2. (b) Palanisamy Konar died on 26.5.1982, and their mother Pongammal died on 16.1.1994. Both of them died intestate, leaving behind the plaintiffs and defendants as their heirs. After the death of Palanisamy Konar, defendants 1 and 2 were promising to give the share in the suit properties and they also used to give portion of the agricultural produce to the plaintiffs. https://hcservices.ecourts.gov.in/hcservices/ (c) Defendants 1 and 2 cannot have any exclusive right, title or interest over the suit properties. The plaintiffs' father purchased the properties under a registered sale deed dated 3.11.1958 and he acquired the properties by way of Partition Deed dated 18.10.1995. So, both the plaintiffs and defendants are entitled to equal share in 'A' and 'B' schedule properties. 'B' schedule properties are house properties and 'A' schedule properties are agricultural lands. (d) The defendants 1 and 2 partitioned the properties as per the Partition Deed dated 18.10.1995. The plaintiffs are not parties to the said Partition Deed and hence, the same is not valid and binding on them. (e) The plaintiffs are entitled to share in the suit properties. Hence, they have come forward with the present suit for partition, claiming preliminary decree of 2/6 share in the suit properties and to appoint a Commissioner to divide the suit properties and to determine the mesne profits from the date of suit till the date of delivery of possession and for costs of the suit. 3. The gist and essence of the written statement filed by the first and second defendants are as follows: (a) The plaintiffs have ceased to be the members of the family of Palanisamy Konar eversince their marriage, which took place long back. (b) At the time of filing the present suit, the first plaintiff was aged 39 years and was given in marriage in 1982, the second plaintiff aged 48 years, was given in marriage in 1971, the third defendant aged 50 years, was given in marriage in 1969 and the fourth defendant aged years, was given in marriage in 1973. (c) The defendants 1 and 2 are enjoying the properties for the period more than the statutory period. The landed properties were allotted to the defendants 1 and 2 under the Partition Deed dated 11.12.1985 between Muthukali Konar, son of Nagamuthu Konar, defendants 1 and 2 and Saravanamuthu Konar, S/o Nagamuthu Konar, which were sold by defendants 1 and 2 to third parties without any protest or objection either by the plaintiffs or defendants 3 and 4. (d) Portions of land in Survey Nos.350 and 351 of Vellalore Village, were acquired by the State Government under the provisions of Land Acquisition Act. The defendants 1 and 2 claimed compensation for the same and received. Neither the plaintiffs nor defendants 3 and 4 made any claim. (e) The schedule mentioned properties in the plaint, and other properties were acquired by the joint exertions of the father of the https://hcservices.ecourts.gov.in/hcservices/ parties and his brothers, sometimes by one of them and sometimes by all of them. (f) When Palanisamy Konar was alive, he executed a Will on 15.4.1982 while he was in a sound and disposing state of mind and the Will was also registered. The plaintiffs and defendants 3 and 4 are fully aware of the execution of the Will. (g) Under the said Will, Palanisamy Konar bequeathed his entire properties including the suit properties absolutely in favour of defendants 1 and 2. Neither the plaintiffs, nor defendants 3 and 4, questioned the abovesaid Will. After a long time, they have now come forward with the false claim. (h) The defendants 1 and 2 are exclusively enjoying the properties bequeathed to them under the Will of their father, asserting title in themselves, openly and hostilely to all their sisters, and they thus have ousted the plaintiffs and defendants 3 and 4 from claiming any share in the suit properties and other properties. Then only, defendants 1 and 2 have divided the properties between themselves under the registered Partition Deed dated 18.10.1995. During that period, neither the plaintiffs nor defendants 3 and 4 raised any objection. (i) On 11.12.1985, there was a partition among the three brothers, namely Muthukali Konar, Palanisamy Konar and Saravanamuthu Konar and sons of Nagamuthu Konar and A schedule properties were allotted to Muthukali Konar, B schedule properties were allotted to defendants 1 and 2, and C schedule properties were allotted to Saravanamuthu Konar. and the said Partition Deed was accepted and acted upon. (j) On 29.7.1994, some of the properties held by Saravanamuthu Konar and defendants 1 and 2, were partitioned between them, in which A schedule properties were taken separate possession by Saravanamuthu Konar and B schedule properties were taken separate possession by defendants 1 and 2. On 18.10.1995, defendants 1 and 2 effected a partition between them in which item 1 in A schedule properties, 15 cents in S.F.No.351/1 and other lands in A schedule properties, and item 2, were allotted to the second defendant and in S.F.No.251/3 in item 1 of A schedule and 2 acres 15 cents in S.F.No.782/2 of Chettipalayam Village in item 2 of A schedule properties, were allotted to the first defendant. The first defendant was allotted the house bearing Door Nos.68 and 70-A along with adjacent vacant sites in the partition. (k) The averment that the father of the parties Palanisamy Konar died intestate, is false. The allegation that defendants 1 and 2 were all along promising to give the share in the suit properties and they also used to give portion of the agricultural produces to the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs, is false and incorrect. (l) There is no cause of action for the suit. The properties were not properly valued. The defendants 1 and 2 prayed for dismissal of the suit. 4. The sum and substance of the written statement filed by the fourth defendant are as follows: The relationship between the parties are admitted. The third and fourth defendants and the plaintiffs, are not entitled to any share in the suit properties. All the daughters of Palanisamy Konar know about the Will executed by him on 15.4.1982, giving his properties only to his sons. The plaintiffs and defendants 3 and 4 all have been married long back with sufficient "Seers" and expenses. The daughters have no share in the properties. The third defendant does not claim any share in the suit properties. The suit is barred by limitation. No pre-suit notice has been issued. He prayed for dismissal of the suit. 5. The trial Court, after considering the averments both in the plaint and in the written statement, and the arguments of the learned counsel for the appellants/D1 and D2 and the respondents 1 and 2/plaintiffs and the respondents 3 and 4/defendants 3 and 4 having been set ex-parte, framed two issues for consideration, and upon considering the oral evidence of P.W.1 and D.Ws.1 and 2 and the documentary evidence of Exs.A-1 to A-3 and Exs.B-1 to B-13, decreed the suit granting preliminary decree of partition, and holding that Ex.B-13 Will is not true and genuine document and disbelieving the evidence of D.W.2, the attestor of the Will, against which, the present First Appeal has been preferred by the appellants/D1 and D2, namely the sons of Palanisamy Konar. 6. After hearing the arguments of the learned counsel for the appellants/D1 and D2 and respondents 1 and 2/plaintiffs and respondents 3 and 4/defendants 3 and 4, though notice served, did not appear either in person or through counsel, this Court frames the following points for determination in this First Appeal: (i) Whether the trial Court is correct in holding that Ex.B-13 Will is not true and genuine document ? (ii) Whether the trial Court is correct in granting preliminary decree of partition of 2/6 share in the suit properties ? and (iii) To what reliefs the appellants/defendants 1 and 2, are entitled to ? 7. Learned counsel for the appellants/defendants 1 and 2 contended that respondents 1 and 2/plaintiffs are the sisters of the appellants and the respondents 1 and 2/plaintiffs have filed the https://hcservices.ecourts.gov.in/hcservices/ present suit for partition and separate possession of 2/6 share in the suit properties, stating that their father Palanisamy Konar is the owner of the properties and he died intestate and hence, they are entitled to share in the suit properties. A-schedule properties are agricultural lands and B schedule properties are house properties. The defence raised by the appellants/defendants 1 and 2 is that their father executed a registered Will and bequeathed his properties in favour of two sons (appellants 1 and 2) under Ex.B-13 Will on 15.4.1982 and after the death of their father on 26.5.1982 as evidenced by Ex.A-1 Death Certificate of Palanisamy Konar, the appellants/defendants 1 and 2 have dealt with the properties under Ex.B-11 and some properties have been acquired by the State Government and the compensation has been received only by the appellants/defendants 1 and 2 and during the period, the respondents 1 to 4/defendants 1 and 2 and plaintiffs never raised their little finger and they kept quiet all along and on 15.4.1982 onwards, they were in possession and enjoyment, hostile to the interest of the sisters with their knowledge for more than the statutory period and so, they have prescribed title by adverse possession by ouster. 8. Further, learned counsel appearing for the appellants/defendants 1 and 2 submitted that the attestor to the Will/D.W.2 Somasundaram was examined to prove Ex.B-13 Will, but the trial Court committed error in discarding and rejecting the evidence of D.W.2 without assigning convincing reasons. He further submitted that disinheriting the legal heir, is not a suspicious circumstance and there is no suspicious circumstances for execution of Ex.B-13 Will and to substantiate his arguments, learned counsel for the appellants/defendants 1 and 2 relied upon various decisions of the Apex Court. 9. Learned counsel for the appellants/defendants 1 and 2 further submitted that Ex.B-13 Will is a true and genuine document, which is not suffering from any suspicious circumstances and the Will has been proved by the appellants/defendants 1 and 2 by way of examining D.W.2, dispelling the suspicious circumstances alleged by respondents 1 and 2/plaintiffs, so, the trial Court ought to have accepted Ex.B- 13 Will and dismissed the suit and hence, he prayed for allowing the appeal, dismissing the suit. 10. Learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs submitted that the suit properties are the properties of the father Palanisamy Konar and the plaintiffs and the defendants are the legal heirs to succeed to the properties. He further submitted that the appellants/defendants 1 and 2 put forth Ex.B-13 Will, which is suffering from suspicious circumstances. D.W.2 is admittedly working along with the second respondent. The trial Court considered the evidence of D.W.2 and rejected the evidence of D.W.2 and came to the correct conclusion that Ex.B-13 is not a true and genuine document and so, the trial Court is correct in holding and granting https://hcservices.ecourts.gov.in/hcservices/ preliminary decree of partition since the Will was not proved. Learned Senior Counsel appearing for the respondents 1 and 2/plaintiffs relied on the decisions of Courts and submitted that the father was suffering cancer and he was undergoing treatment and the Doctors themselves have lost hope and so, he was discharged from the hospital. The Will is alleged to have been executed on 15.4.1982 and the father died on 26.5.1982 and so, the mental and physical condition was not stable and so, he was not in a sound and disposing state of mind to execute the Will Ex.B-13 and the Will is not a free Will and it does not contain the description of the properties on the date of the alleged execution of Ex.B-13, the wife of Palanisamy Konar has been alive and no provision has been made in the Will for his wife, no reason has been assigned as to why the testator (father) disinherited his daughters and this suspicious circumstance has not been dispelled by the propounder, so, the trial Court considered all the aspects in proper perspective and came to the correct conclusion and the learned Senior Counsel therefore prayed for dismissal of the First Appeal. 11. It is necessary to know the genealogy of the family of the plaintiffs and defendants, to decide the case: Nagamuthu Konar | | |------------------------------------------------------ |------------------------------------------------------| Muthukali Konar Palanisamy Konar Saravanamuthu Konar = (died on 26.5.1982) Pongammal (wife) | (died on 16.1.1994) | |-------------|------------------|------------------ |---------------|---------------| Janaki Palaniammal Uthirasamy Boopathy Mylathaal Easwari (1st pltiff) (2nd pltiff) (1st defdt) (2nd defdt) (3rd defdt) (4th defdt) 12. The appellants/defendants 1 and 2 have filed documents https://hcservices.ecourts.gov.in/hcservices/ Exs.B-1 to B-3, which shows that Palanisamy Konar purchased the properties under Ex.B-3. The title documents are Exs.B-1 and B-2. Exs.B-4 and B-5 are the promissory notes discharged out of the sale consideration mentioned under Ex.B-3, which was executed by Venkatachala Konar. Ex.B-6 properties have been purchased both by Palanisamy Konar and his brother Saravanamuthu Konar on 6.12.1967. Some properties were purchased by them jointly. After the death of Palanisamy Konar, the properties belonging to Muthukali Konar, Saravanamuthu Konar and Palanisamy Konar, have been divided under Ex.B-7 registered Partition Deed, dated 11.12.1985. In Ex.B-7, A schedule properties were allotted to Muthukali Konar and B schedule properties to the appellants/first and second defendants and C schedule properties to Saravanamuthu Konar. Under Ex.B-8 Partition Deed , dated 29.7.1994, the properties jointly purchased by Saravanamuthu Konar and Palanisamy Konar, have been divided between Saravanamuthu Konar and the appellants/defendants 1 and 2, and in Ex.B-8, A schedule properties were allotted to Saravanamuthu Konar and B schedule properties to the appellants/defendants 1 and 2 and after that, on 18.10.1995, the appellants 1 and 2 have divided the properties under Ex.B-9 on 18.10.1995. A-schedule properties to the first defendant and B schedule properties to the second defendant. 13. It is pertinent to note that during the lifetime of Palanisamy Konar, under Ex.B-10 Partition Deed, dated 15.11.1978, they have partitioned the properties and A schedule properties were given to Palanisamy Konar and B schedule properties to Saravanamuthu Konar, and this has clearly proved that the three brothers, namely Muthukali Konar, Saravanamuthu Konar and Palanisamy Konar have purchased the properties and divided the same; Palanisamy Konar and Saravanamuthu Konar have purchased the properties separately and some properties were divided under Ex.B-10 among themselves and after the death of Palanisamy Konar, it was divided under Ex.B-8 on 29.7.1994. After the death of Palanisamy Konar, three sons of Nagamuthu Konar have divided the properties under Ex.B-7 on 11.12.1985. So, the properties belong to the family of Palanisamy Konar, which is not disputed. 14. Now, the only dispute is as to whether Palanisamy Konar died intestate or he made testamentary disposition. 15. The respondents 1 and 2/plaintiffs raised a plea that their parents died intestate and so, they are entitled to equal share along with their brothers/appellants 1 and 2/defendants 1 and 2. Per contra, the appellants/D1 and D2 have put forth their claim on the basis of Ex.B-13 Will alleged to have been executed by their father on 15.4.1982. It is well settled principle of law that the propounder of the Will, must prove the Will in accordance with law so as to dispel the suspicious circumstances. So, this Court has to decide as to whether the appellants/D1 and D2 being the propounder of the Will, have proved the Will or not. To prove the Will, they have examined https://hcservices.ecourts.gov.in/hcservices/ D.W.2 Somasundaram. It is well settled principle of law that examination of one of the attestors to the Will, is sufficient, provided his evidence is cogent, convincing and trustworthy and then only, the evidence could be relied upon by the Court. But the trial Court rejected the evidence of D.W.2 16. Now, it is the duty cast upon this Court to scrutinise the evidence of D.W.2 and decide as to whether the evidence of D.W.2 is trustworthy and reliable. 17. On a perusal of the evidence of P.Ws.1 and 2, it is seen that admittedly, Palanisamy Konar died of cancer. He was admitted in Dr.Sengaliappan Hospital, from where he was discharged and admitted in Kuppusamy Naidu Hospital and as he was suffering from the advanced stage of cancer, he was discharged and subsequently admitted in ESI Hospital, and thereafter he died. 18. In such circumstances, it is the duty cast upon the appellants/D1 and D2 to prove that at the time of execution of Ex.B- 13, their Palanisamy Konar was sound and disposing state of mind and also out of his free volition, whether the Will was executed. To prove the same, D.W.2 Somasundaram, one of the attestors to the Will, was examined. Through the evidence of D.W.2, the attestation has been proved, as per Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. In his evidence in cross-examination, D.W.2 fairly conceded that at the time of execution of the Will, himself and the second defendant were working in Saradha Mill and he further stated that the deceased-testator Palanisamy Konar was admitted in Sengaliappan Hospital from where the deceased-testator Palanisamy Konar was diagnosed for Cancer and the deceased-testator was in that hospital for ten days and then, he was discharged stating that the Cancer was in advanced stage and subsequently, he was admitted to Kuppusamy Naidu Hospital and they have also suggested that the Cancer was in the advanced stage from where also, he was discharged and was in the house for ten days and subsequently admitted in ESI Hospital and later he died. This shows that Palanisamy Konar was admitted in hospital and then only he was discharged and only after that, he executed the Will. In his cross examination, D.W.1 has specifically stated that he does not know the date of execution of the Will. He himself stated that he does not know that at the time of execution of the Will, whether he was suffering from illness and he also stated that he does not know as to who gave the information for writing the Will. D.W.2 also fairly conceded that he was not present at the time of writing the Will. So, the evidence of D.W.2 is necessary for deciding the case. In his evidence, D.W.2 has stated in his chief examination as follows: @ ///// Fg;g[rhkp eha[L kUj;Jtkidapy; ,Ue;J KoahJ vd;W mDg;gpa gpwF </v!;/I kUj;Jtkidapy; ,Uf;Fk;nghJ tPl;ow;F te;j https://hcservices.ecourts.gov.in/hcservices/ gpwF capy; vGjpa tptuk; vdf;F bjhpahJ/ capy; vGjpd gpwF ,we;jJ rhpahf bjhpahJ xU khjk; ,Uf;Fk;/ </v!;/I kUj;Jtkidapy; , Ue;jhh;/ ,we;j njjp bjhpahJ/ capy; vGjpa njjp bjhpahJ ,we;Jnghd rutzKj;J nfhdhh; fhspKj;J nfhdhh; vd;w 2 rnfhjuh; , Ue;jhh;fs;/ mth;fs; ,Uthpy; fhspKj;J nfhdhh; cld; ,Ue;jhh;/ capy; vGJk;nghJ ePz;l ehs; neha;tha;g;gl;oUe;jhh; vd;gJ bjhpahJ/ capypd; thrf';fs; ahh; brhd;dhh; vd;gJ bjhpahJ/ capy; fhspKj;J nfhdhh; brhy;y capy; jahhpf;fg;gl;lJ vd;gJ vdf;F bjhpahJ/ capYf;F ahh; thrfk; brhd;dhh; vd;gJ vdf;F bjhpahJ/ capYf;F thrfk; brhy;Yk;nghJ ehd; m';F ,y;iy/ capYf;F thrfk; brhy;Yk;nghJ ahh;. ahh; ,Ue;jhh; vd;gJ vdf;F bjhpahJ/ /////@ 19. In the cross examination, DW2 fairly conceded that in the Will, it was specifically mentioned that the properties in the administration of Palanisamy Konar, have been bequeathed. It is relevant to notice the following portion of his evidence in cross examination: @ ///// capy; rhrdj;jpy; mtuJ eph;thf mDgtj;jpy; ,Uf;Fk; brhj;Jf;fs; gw;wpjhd; vGjg;gl;Ls;sJ/ capypd; go ve;bje;j brhj;Jf;fs; mtuJ eph;thf mDgt ghfj;jpy; ,Ue;jJ vd;Wk;. ve;bje;j brhj;Jf;fs; mtuJ eph;thf mDgtj;jpy; ,y;iy vd;gJ vdf;F bjhpahJ/ ////@ 20. Further, a suggestion was posed to D.W.2 since Palanisamy Konar was in death bed, himself and the second appellant have concocted and presented the Will, has been denied by him. In his cross examination, he has candidly admitted that Palanisamy Konar came to house and called him. He further stated that he came by walk to his house. But this Will has clearly proved that since both the second appellant and D.W.2 were working in the very same Saradha Mill, to oblige the appellants/D1 and D2, D.W.2 came forward with such an evidence. Admittedly, the deceased Palanisamy Konar has been suffering from Cancer disease and it was diagnosed at Sengaliappan Hospital and he was admitted there and they expressed that there is no scope for survival of the Palanisamy Konar and hence, he was discharged and subsequently, he was admitted in Kuppusamy Naidu Hospital and there also, they have expressed that there is remote chance or no chance for survival and hence, he was discharged and he was in his house and after that only, he was admitted in ESI Hospital, where he died and these facts have clearly proved that the said Palanisamy Konar was suffering from Cancer which was at the advanced stage, he went to the house of D.W.2 and requested him to be a witness for the execution of the Will, that too, he is not the friend of the testator and is only the friend of the second appellant. So, it is clearly proved that the evidence of D.W.2 is not https://hcservices.ecourts.gov.in/hcservices/ trustworthy to help his friend, he has deposed such evidence. The trial Court has considered the evidence of D.W.2 and came to the correct conclusion that his evidence is not trustworthy and unreliable. 21. The other witness to the Will is Balakrishnan, who was not examined by the propounder and no reason has been assigned for the same. 22. Per contra, when D.W.2 was in the witness box, in cross examination, a suggestion was posed to him that since it was fabricated one, Balakrishnan refused to give evidence before Court, which was denied by him. 23. Considering the same, I am of the view that the trial Court is correct in holding that the evidence of D.W.2 is not trustworthy and unreliable. 24. At this juncture, this Court has to consider the evidence of D.W.1 who is one of the propounders and beneficiary under Ex.B-13 Will. Even though in his chief examination, he has stated in (paragraph 6 of the proof affidavit) that his father has executed the Will in his favour and also in favour of his brother; in his cross- examination, he fairly conceded that all the suit properties are his father's self-acquired properties. He further stated in cross- examination that at the time of execution of the Will Ex.B-13, the mother was alive. 25. While perusing the Will, no provision has been made to the wife of the deceased-testator (father of the parties). There is no reason assigned therein. In his evidence, D.W.1 stated that his senior paternal uncle and junior paternal uncle are not the attestors to Ex.B-13 Will. In his cross-examination, D.W.1 further stated that 25 days prior to his father's death, he came to know about the execution of the Will and he fairly conceded that his father died of Cancer and initially he was admitted in Sengaliappan Hospital, where he was diagnosed that he was suffering from Cancer and it was in advanced stage and therefore, he was admitted in Kuppusamy Naidu Hospital, where he