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High Court of Judicature at Madras
G. RAJASURIA, J.
Nachiammal (Deceased) LRs. & Others
Versus
Kuppulakshmi & Others
S.A.No.920 of 2006
Decided on : 17-10-2012
Succession Act - Section 63 - The court considered the strict principles laid down in Section 63(c) of the Succession Act, which require proper attestation of a Will. The court discussed the requirements for due execution of a Will and the importance of attestation by two or more witnesses. The court also referred to Section 68 of the Evidence Act, which provides for the proof of execution of a document required by law to be attested.
Fact of the Case:
The original plaintiff filed a suit for partition of the suit property. The trial court passed a preliminary decree in favor of the plaintiff. The first appellate court reversed the judgment and decree of the trial court, upholding the validity of an unregistered Will. The second appeal was filed by the daughters of the original plaintiff, claiming that their mother executed a registered Will bequeathing her share in the suit property to them. The substantial questions of law were whether the first appellate court was justified in upholding the validity of the unregistered Will and whether there was any perversity or illegality in the judgment and decree of the first appellate court.
Finding of the Court:
The court analyzed the evidence and found that the unregistered Will was not proven to be genuine. The court highlighted the requirements for due execution of a Will and the importance of proper attestation. The court also considered the preponderance of probabilities and the lack of clarity in the evidence. The court referred to several precedents to support its decision. The court concluded that the first appellate court was not justified in upholding the validity of the unregistered Will and remitted the matter back to the trial court for further consideration.
Ratio Decidendi: The first appellate court was not justified in upholding the validity of the unregistered Will due to lack of evidence and non-compliance with the requirements for due execution of a Will.
Result: The second appeal was allowed and the judgment and decree of the first appellate court were set aside. The matter was remitted back to the trial court for further consideration.
This second appeal is focussed by D1 and D2, animadverting upon the judgment and decree dated 21.02.2005 passed by the learned Principal Subordinate Judge, Erode in A.S.No.49 of 2004 reversing the judgment and decree dated 23.07.2004 passed by the learned II Additional District Munsif, Erode in O.S.No.61 of 1999.
2. The parties are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal would run thus:
a] The original plaintiff-Nachiammal filed the suit for partition seeking the following reliefs: - To pass a judgment and decree as follows:
a) directing the division of the suit property by metes and bounds with reference to good and bad soil into 16 equal shares by appointing a commissioner and allot 5 such consecutive shares to her and put the plaintiff herein in possession of such allotted shares.
b) restraining the defendants 4 and 5 herein their men and agents by means of a permanent injunction from in any manner encumbering the suit property till a final decree is passed in this suit.
c) directing the defendants 4 and 5 herein to pay the plaintiff the cost of this suit.
(extracted as such)
b] The averments in the plaint could succinctly and precisely be set out thus:
The property described in the schedule of the plaint absolutely belonged to her deceased husband Kaliappa Gounder, who died intestate on 28.03.1992 leaving behind his widow, viz., Nachiammal the original plaintiff, his son Nachimuthu Gounder and his two daughters viz., Lakshmi D1 and Rajammal D2. It so happened that the legal heirs were in joint possession of the suit property. The said Nachimuthu Gounder died intestate during the year 1998 leaving behind his wife Annakodi (D3) and his two daughters, viz., Kuppulakshmi (D4) and Vijayalakshmi (D5). After the death of Nachimuthu Gounder when the original plaintiff sought for partition, the legal heirs of deceased Nachimuthu Gounder did not agree to it. Hence, the suit.
c) D1 to D3 remained absent and set exparte in the trial court.
d) D4 and D5 filed the written statement setting out various averments, the warp and woof of the same would run thus:
The relationship as found detailed in the plaint is an admitted one. However, the said Kaliappa Gounder during his life time executed an unregistered Will dated 04.09.1991 bequeathing the suit properties, so to say, his self-acquired properties in favour of D4 and D5. As such, they prayed for the dismissal of the suit.
e] Whereupon issues were framed.
f] Up went the trial, wherein the plaintiff examined herself as PW1 and marked Exs.A1 to A8. On the defendants' side, D4 examined herself as D.W1 along with DW2 and marked Exs.B1 to B22.
g] Ultimately the trial court passed the preliminary decree allotting 5/16th share in favour of the plaintiff in the suit for partition.
h] Being aggrieved by and dissatisfied with such preliminary decree, D4 and D5 filed the appeal, whereupon the first appellate court reversed the judgment and decree of the trial court giving a finding that the Will Ex.B4 is valid and accordingly, dismissed the suit.
4. After the dismissal of the appeal by the first appellate court, it appears that the original plaintiff Nachiammal died; whereupon, the two daughters, viz., Lakshmiammal (D1) and Rajammal(D2) in the suit with the leave of the court presented this second appeal, contending that the deceased Nachiammal executed the registered Will dated 18.01.2002 pendente lite bequeathing her share in the suit property in favour of them.
5. My learned predecessor at the time of admitting the second appeal, framed the following substantial question of law. Whether the courts below are right in not applying the strict principles laid down in Section 63 (c ) of the Succession Act and should it not have held that the non-examination of persons capable of identifying the signature of the deceas
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