Balathandayutham & Anr vs Ezhilarasan

2. The material facts of the case are: Late Mr. M. Ramachandran, the father of the 1st appellant as also of the plaintiff-respondent, had three sons, namely, Balathandayutham (1st appellant), Ezhilarasan (plaintiff-respondent) and one Gnanavoli and two daughters - Kalai Arasi and 1 Isai Amudhu and his wife was Nachiar Ammal. It is not in dispute that Ramachandran acquired certain properties and in his lifetime he executed a Will which was registered on 25.09.1972. By the said Will he bequeathed certain properties, from the income of which Seva Puja and maintenance of Sri Bala Murugan Temple was to be conducted. In respect of his other properties he bequeathed the same in favour of plaintiff-respondent and his other son Gnanavoli and two daughters and giving his wife life interest.

3. Insofar as the 1st appellant is concerned, no property was bequeathed to him, inter alia, on the ground that after education he was staying apart and had not shown any interest in the family members. The case in the plaint is that since the 1st appellant, the elder brother of the plaintiff-respondent, left the family after his education and married another woman belonging to some other caste without the consent of the parents, no provision in the 2 Will dated 25.09.1972 was made by the testator in favour of the 1st appellant. The testator Ramachandran died on 23.5.1980 and after his death, the plaintiff-respondent was in exclusive possession of the property. At that stage the 1st appellant tried to disturb the possession of the plaintiff-respondent with the help of some anti social elements. This led to the filing of the suit. In the suit, the stand of the 1st appellant was that Will dated 25.09.1972 was not genuine and the said Will had been revoked by Ramachandran by another Will dated 25.4.1980 and also thereafter by another Will dated 2.5.1980. Both the appellants claimed their rights under the so- called subsequent Wills. In his rejoinder, plaintiff-respondent claimed that the so-called subsequent Wills dated 25.4.1980 and 2.5.1980 are fabricated and at the relevant point of time Ramachandran was bedridden and did not have the capacity to execute any Will as he died within a few days thereafter on 23.5.1980. The Trial Court dismissed the suit upholding 3 the contention of the 1st appellant. The First Appellate Court, however, allowed the appeal and decreed the suit. The stand of the 1st appellant herein, before the First Appellate Court, was that Will dated 25.09.1972 was not a genuine one and was revoked by the subsequent Will dated 25.4.1980.

5. The High Court held that the finding given by the First Appellate Court that Ex.B-19 and Ex.B-20 cannot be said to have been proved in view of non-compliance with the mandatory requirement under Sections 68 and 69 of the Indian Evidence Act is a correct finding. The High Court found that the first Will which was executed in 1972 (Ex.A1) was executed while the testator was residing with the plaintiff and 5 his wife and another son in joint family in his residential house at Villupuram but the subsequent two Wills Ex.B-19 and Ex.B-20 were executed at Cuddalore where the 1st appellant was residing. The fact remains that in the first Will no provision was made for the 1st appellant but in the second two Wills provisions were made in favour of the 1st appellant and they were allegedly executed when the testator was staying in the house of the 1st appellant. These two Wills were also executed a couple of weeks prior to the death of the testator.

10. Following the aforesaid principle, this Court is constrained to hold that the appellants did not succeed in discharging its onus of removing the suspicious circumstances surrounding Ext B19 & B20. As such there is no reason for us to find any error in the judgment of the High Court.

15. We also affirm the aforesaid finding of the High Court and dismiss this appeal leaving the parties to bear their own costs.