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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. THANIKACHALAM
Ayyasamy Pillai - Appellant
Versus
Rajangam & Another - Respondents
S.A.NO.1474 OF 1991
Decided On : 23 September 2003
Will - Property Dispute - Indian Succession Act, Indian Evidence Act - Sections 63, 68, 69 - The court analyzed the effect of Section 63 of the Indian Succession Act, as well as Sections 68 & 69 of the Indian Evidence Act, and concluded that the plaintiff failed to prove the execution of the Will, the genuineness of the Will, and the attestation of the Will as mandated by law. The court found that the plaintiff did not provide proper and acceptable explanation for the non-production of the original Will, and therefore, the registration copy of the Will alone was not sufficient as secondary evidence. The court also highlighted the suspicious circumstances surrounding the Will, including the inclusion of properties in the Will before their registration, and the plaintiff's conduct in creating a settlement deed in his favor. The court concluded that the Will was not the voluntary act of the testator and dismissed the appeal, confirming the decrees and judgments of the courts below.
Fact of the Case:
The plaintiff/appellant filed a suit for recovery of possession and declaration of ownership of family properties based on a registered will executed by his father. The defendants opposed the suit, contending that the will was not genuine and the plaintiff was not entitled to the properties. The trial court and the appellate court both dismissed the suit, finding that the plaintiff failed to prove the execution and genuineness of the will, and that the will was surrounded by suspicious circumstances.
Finding of the Court:
The court found that the plaintiff failed to prove the execution of the Will, the genuineness of the Will, and the attestation of the Will as mandated by law. The court also highlighted the suspicious circumstances surrounding the Will, including the inclusion of properties in the Will before their registration, and the plaintiff's conduct in creating a settlement deed in his favor. The court concluded that the Will was not the voluntary act of the testator and dismissed the appeal, confirming the decrees and judgments of the courts below.
Issues: The issues in the case included the validity and genuineness of the Will, the attestation of the Will, and the entitlement of the plaintiff to the family properties based on the Will.
Ratio Decidendi: The court's decision was based on the failure of the plaintiff to prove the execution and genuineness of the Will, the suspicious circumstances surrounding the Will, and the plaintiff's conduct in creating a settlement deed in his favor. The court also emphasized the requirements of Section 63 of the Indian Succession Act, as well as Sections 68 & 69 of the Indian Evidence Act, and concluded that the plaintiff did not meet the legal standards for proving the Will.
Final Decision: The court dismissed the appeal, confirming the decrees and judgments of the courts below, with costs.
The unsuccessful plaintiff before the courts below is the appellant.
2. The plaintiff/appellant and the defendants/ respondents, are the sons of one Samiayya Pillai, who died on 7.4.1985. His wife is one Kamakshi Ammal. Samiayya Pillai and his sons including the plaintiff and the defendants, partitioned their family properties, under a registered partition deed dated 22.6.1961. Natarajan, the second defendant and one Ramakrishnan, another son of Samiayya Pillai were minors at the time of the partition. Therefore, the properties allotted to them, were enjoyed and managed by their father, Samiayya Pillai. The second defendant after attaining majority, took possession of the properties allotted to him, under the registered partition deed.
3. Minor Ramakrishnan died at the age of 15 or so, elsewhere in the year 1967 or 1968. After the death of Ramakrishnan, Samiayya Pillai continued to enjoy the properties allotted to Ramakrishnan, also paying the revenue charges to the Government. Till the date of his death, Samiayya Pillai and his wife Kamakshi were under the care and protection of the eldest son viz., the plaintiff and therefore, they had special affection towards the plaintiff. Samiayya Pillai had executed a registered will dated 8.6.1981 in favour of the plaintiff, bequeathing the properties allotted to him, in the partition, as well as the property purchased by him, under a registered sale deed dated 4.6.1981, including the properties allotted to Ramakrishnan, who died unmarried. The Will came into force on the date of death of the executant on 7.4.1985. Thus, the plaintiff became the absolute owner of the suit properties.
4. The second defendant had forcibly entered into possession of the family house bearing door No.3/15, though the mother was in occupation of the said house. After the second defendant Natarajan came into possession of the house, he had burked all the documents, under the ill advice of the first defendant and therefore, the plaintiff is unable to produce the original documents. 'A' schedule property – landed properties – are continuously in the possession of the plaintiff, in which the defendants have no right. The defendants attempted to disturb the plaintiff's possession, which was thwarted. Since the second defendant has been in possession of the house, the plaintiff was constrained to file the suit for recovery of possession, in respect of 'B' schedule properties. On the above averments, the plaintiff had filed the suit for declaration, permanent injunction regarding 'A' schedule properties, and for declaration and possession regarding 'B' schedule properties.
5. The suit was opposed by the defendants, inter alia, contending that the suit is bad for non joinder of necessary parties, that the will relied on by the plaintiff is not genuine and the same was not given effect to, which was accepted in the Panchayat, that there was a Panchayat on 9.8.1975, in which the plaintiff was given 11 mahs 48 kuzhis including 71 cents in Survey No.289/6 described in the Schedule 'A', and other items were given to the first defendant, that the properties allotted to Ramkrishnan devolved upon Kamakshi as heir to her son, over which the father had no right to execute a Will, that the father had no right or title to execute a Will with regard to items 3 to 6 of 'A' schedule properties and 'B' schedule properties, that the Will even though not genuine, not acted upon, since he would not have executed the Will, out of his own free will and volition and denying other allegations also, prayed for the dismissal of the suit.
6. On the above pleadings, the parties went on trial before the trial Court. It seems the suit was originally dismissed on 26.10.1987, against which an appeal was preferred in A.S.No.47/88. It appears, in order to give an opportunity to the plaintiff, to prove the execution of the Will, by the examination of the attesting witness, the case was remitted back to the trial Court. After remand, the lea
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