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2016 Supreme(Mad) 3911
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V.M. Velumani, J.
K. Kuppanna Gounder (Died) – Appellant
Versus
R. Sivakami – Respondent
S.A. No. 1706 of 2001 and C.M.P. No. 17876 of 2001
Decided On : 15-12-2016
For the Appellant : Mr. R. Vijayakumar for Mr. N. Damodharan.
For the Respondents: Mr. V. Meenakshi Sundaram for Mr. D. Nallathambi, Mrs. S. Srimathy and Mr. K. Karunakaran.
Headnote:
Indian Succession Act - Section 63(c) - Indian Evidence Act - Section 68 – Suit for partition - Ancestral property – Share - Will - Execution of - 1st Respondent filed suit for partition of suit schedule properties and allot ¼th share to her - Appellants and respondents 1 and 2 are children of one - Said Kuppusamy Gounder and his father Palanimalai Gounder partitioned properties in year 1965 and A Schedule property was allotted to Schedule property was allotted to Palanimalai Gounder - Kuppusamy Gounder died on 23.5.1974 and Palanimalai Gounder died - 1st Respondent demanded partition and appellants and 2nd Respondent refused for same and therefore she issued notice to appellant and 2nd Respondent - They did not agree for partition - She filed suit originally against 2nd Respondent and appellants - whether the court below erred in rejecting Ex B5 Will and granting ¼th share in schedule B property - Held, Considering evidences of DW4, the appellate Judge held that he is not a reliable witness and he is an interested witness and he is giving evidence in favour of appellants 1 and 2 and he helped appellants to fabricate the document. Considering the profession of DW4 and nature of evidence given by him, learned 1st Appellate Judge condemned the DW4 - It is well settled that report of handwriting expert must be accepted by courts below with caution - The courts are not prohibited relying on opinion of handwriting expert - The same can be accepted coupled with other facts and circumstances - PW2 handwriting expert has given cogent and valid reason for his opinion - The courts below have considered the said report along with other documents and evidence of DW1 to DW4 and also failure of Appellants 1 and 2 to disclose the existence of Will at earliest, came to correct conclusion that Will is not a genuine one and same is finding of fact - There is no error in law. In the circumstances, Judgments relied on by counsel for appellants do not advance case of appellants - Second Appeal is dismissed.
V.M. Velumani, J.
1. This Second Appeal has been filed against the judgment and decree dated 12.10.2000, made in A.S. No. 47 of 2000 on the file of the Additional District Judge-cum-Chief Judicial Magistrate Court, Karur, confirming the Judgment and decree dated 24.4.2000, made in O.S. No. 239 of 1986 on the file of the Subordinate Court, Karur.
2. The appellants are the Defendants 2 and 3, who lost before both the courts below. Pending appeal, the 2nd Appellant died. Appellants 3 to 6 were impleaded as his Legal Representatives. 1st Respondent is the plaintiff. 2nd Respondent is the 1st Defendant in the suit. The Respondents 3 to 12 are the Defendants 4 to 7 and 9 to 14.
3. Facts of the Case:
(i) The 1st Respondent filed the suit in O.S.239 of 1986 for partition of suit schedule properties and allot ¼th share to her. The appellants and the respondents 1 and 2 are children of one Kuppusamy Gounder. The said Kuppusamy Gounder and his father Palanimalai Gounder partitioned the properties in the year 1965 and 'A' Schedule property was allotted to Kuppusamy Gounder and 'B' Schedule property was allotted to Palanimalai Gounder. Kuppusamy Gounder died on 23.5.1974 and Palanimalai Gounder died on 20.8.1985. The 1st Respondent demanded partition and the appellants and the 2nd Respondent refused for the same and therefore she issued notice dated 20.9.1986 to the appellant and the 2nd Respondent. They did not agree for partition. She filed the suit originally against the 2nd Respondent and the appellants. The appellants took a stand that the 1st Respondent did not implead necessary parties. Therefore the 1st Respondent impleaded the Respondents 3 to 8 and one Palanisamy as Defendants 4 to 10. The said Palanisamy died pending suit. The respondents 9 to 12 were implead as defendants 11 to 14.
(ii) The second appellant filed written statement and the same has been adopted by 1st Appellant. They denied all the allegations made by the 1st Respondent. In Schedule A and B properties apart from Appellants 1 and 2 and respondents 1 and 2 other persons have a share. They contended that in 'A' schedule property the appellants and the Respondents 1 and 2 along with their mother are entitled to 1/5th share each. In respect of 'B' schedule property allotted to Palanimalai Gounder, he executed a Will bequeathing 'B' Schedule property to the appellants. Palanimalai Gounder has left an arrears of Rs. 6,00,000/- towards Income Tax, Wealth Tax and Property Tax. The appellants are paying the same. The suit is bad for non-joinder of necessary and proper parties.
(iii) After the 1st Respondent impleaded the Respondents 3 to 8 and one Palanisamy, the appellants filed additional written statement stating that the persons impleaded by the 1st Respondent are not necessary parties and the 1st Respondent has impleaded them not properly understanding the contentions in the written statement.
(iv) The 1st Respondent filed reply statement stating that the appellants have fabricated the alleged Will and forged the signature of Palanimalai Gounder after the 1st Respondent issued notice dated 20.9.1986.
(v) Based on the pleadings, the Trial Court framed necessary issues.
(vi) Before the Trial Court, the 1st Respondent examined herself as PW1 and one Parthasarathy Jothi, the Handwriting Expert was examined as PW2 and 6 documents were marked as Exs.A1 to A6. On behalf of the appellants, the 2nd appellant examined himself as DW1, and one Velusamy, witness to the Will was examined as DW2 and one Rasappan, who wrote the Will was examined as DW3 and 26 documents were marked as Exs.B1 to B26. The Advocate Commissioner's Report was marked as Ex.C1 and 9 witness documents were marked as Exs.X1 to X9.
(vii) Considering the pleadings, oral and documentary evidence adduced by the parties and the arguments of the learned counsel appearing for the parties, the Trial Court decreed the suit for partition and granted ¼ share to the 1st Respondent in both 'A' and 'B' schedule properties.
