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2017 Supreme(Mad) 2451
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, M.S. RAMESH, JJ.
R. Kumaran - Appellant
Vs.
L. Dhanalakashmi & Ors. - Respondents
A.S. Nos. 191, 192 of 2013 & M.P. Nos. 1, 1 of 2013
Decided On : 27-07-2017
Advocate Appeared:
For the Appellant : Mr. D. Ravichander
For the Respondents: Mr. S. Vijayakumar, for Mr. V. Jayaprakash Narayanan
Headnote:
In a dispute over the ownership of property, the court held that a will propounded by the plaintiff was not surrounded by suspicious circumstances and was valid. The court found that the plaintiff had discharged the onus of proving the will by examining the attesting witnesses and that the defendants had not raised any substantial objections to the will's genuineness. The court also found that the various reasons cited by the trial court for disbelieving the will, such as the use of different inks and the address of the scribe, were not sufficient to establish suspicious circumstances. The court further held that the delay in carrying out mutation of the property could not be taken as a ground for disbelieving the will, as the plaintiff had been in possession of the property for many years and had only carried out the mutation after the defendants started to disturb his possession.
Fact of the Case:
The plaintiff filed a suit for declaration of his title to the suit properties and for restraining the defendants from interfering with his possession and enjoyment of the suit properties. The defendants resisted the case of the plaintiff, claiming that they were entitled to a 2/3rd share in the properties as per the will executed by the plaintiff's father. The trial court partly decreed the suit in favor of the plaintiff by declaring that he was entitled to only 1/3rd share in the suit properties and granted injunction against the 3rd defendant alone from disturbing the plaintiff's possession and enjoyment of his share in the suit property. The defendants appealed against the judgment and decree of the trial court.
Finding of the Court:
The court held that the plaintiff had discharged the onus of proving the will by examining the attesting witnesses and that the defendants had not raised any substantial objections to the will's genuineness. The court also found that the various reasons cited by the trial court for disbelieving the will, such as the use of different inks and the address of the scribe, were not sufficient to establish suspicious circumstances. The court further held that the delay in carrying out mutation of the property could not be taken as a ground for disbelieving the will, as the plaintiff had been in possession of the property for many years and had only carried out the mutation after the defendants started to disturb his possession.
Issues: 1. Whether the will propounded by the plaintiff was valid? 2. Whether the defendants were entitled to a 2/3rd share in the properties as per the will executed by the plaintiff's father?
Ratio Decidendi: The court relied on the following principles in reaching its decision: 1. The onus of proving a will is on the propounder, and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator is sufficient to discharge the onus. 2. Where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. 3. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
Final Decision: The court allowed both the appeals filed by the plaintiff and the defendants, set aside the judgment and decree passed by the trial court, and decreed the suit filed by the plaintiff as prayed for. The court also dismissed the suit filed by the defendants 1 & 2.
R. Subbiah, J.
In the present appeals, challenge is made to the common judgment and decree dated 17.04.2013 in O.S.Nos.111 & 17 of 2011 passed by the learned Principal District Judge, Cuddalore, whereby (i) partly decreeing the suit in O.S.No.111 of 2017 declaring that the plaintiff (appellant herein) is entitled for only 1/3 share in the suit properties and granting injunction against the 3rd defendant (3rd respondent herein) alone from disturbing the plaintiff's possession and enjoyment of his share in the suit property; (ii) decreeing the suit in O.S.No.17 of 2011 granting preliminary decree in favour of the plaintiff therein (respondents 1 & 2 herein) for their 2/3 share in the suit properties.
2. Since the issues involved in both the appeals are interconnected, both these appeals are disposed of by way of this common Judgment.
3. The appellant in both the appeals are one and the same person viz., R. Kumaran. Originally, he had filed a suit in O.S.No.471 of 2010 on the file of the learned Principal District Munsif Court, Cuddalroe on 25.10.2010 against his sister L. Dhanlashmi (D1) and one Vasantha (D2) who is the daughter of the appellant's deceased sister Ranjitham, and also as against one A. Thangavel citing him as 3rd defendant, who is an agreement holder with the defendants 1 & 2.
4. The prayer made in the said suit viz., O.S.No.471 of 2010 reads as follows:-
(i) declaring the plaintiff's title to the suit properties
(ii) restraining the defendants and their men and servants from alienating or in any way disturbing the plaintiff's peaceful possession and enjoyment of the suit properties by an order of permanent injunction.
When the said suit was pending before the learned Principal District Munsif, Cuddalore, the defendants 1 & 2 (respondents 1 & 2 herein - who are sister and deceased sister's daughter) filed a suit in O.S.No.17 of 2011, through their Power Agent-3rd respondent herein/3rd defendant, before the learned Principal District Judge, Cuddalore, praying for partition and separate possession of their 2/3rd share in the suit properties. Subsequent to the filing of the said suit (O.S.No.17 of 2011), the respondents 1 & 2 herein/D1 & D2 have also filed a petition to transfer the suit in O.S.No.471 of 2010 from the file of the Principal District Munsif Court to Principal District Court at Cuddalore, to try jointly along with O.S.No.17 of 2011 and the said transfer petition was allowed; thereby, the suit in O.S.No.471 of 2010 was transferred to the Principal District Court and renumbered as O.S.No.111 of 2011. Both the said suits were tried jointly and common judgment was passed as stayed supra.
5. For the sake of convenience, hereinafter the appellant herein will be referred to as the Plaintiff and the respondents will be referred to as defendants.
6. The case of the plaintiff-R. Kumaran in the suit filed by him in O.S.No.111 of 2011 are as follows:-
6-1.The suit properties originally belonged to the plaintiff's father viz., Rajamanickam. Item No.1 of the suit schedule properties viz., Old S.No.29/3, New S.No.27/4, measuring Acre 1.95 cents, was purchased by the plaintiff's father Rajamanickam under a registered Sale Deed dated 26.07.1961. Item No.2 of the suit schedule properties viz., Old S.No.31/4, New S.No.27/4, measuring acre 1.00 cent, was purchased by the plaintiff's father Rajamanickam under the unregistered Sale Deed dated 28.07.1975. From the date of purchase, the plaintiff's father was in possession and enjoyment of the said properties and he was having patta in his name and also paying kisth. The plaintiff's father Rajamanickam executed a Will in favour of the plaintiff on 20.09.1992 while he was in a sound disposing state of mind. The said Will is true, valid, duly executed and attested and it is the last Will executed by the plaintiff's father Rajamanickam. As per the said Will, after the life time of Rajamanickam, absolute right was given to the plaintiff with regard to the suit properties. The plai
