IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, C. SARAVANAN, JJ.
K.R. Sethupathy & Anr. - Appellants
Versus
Parvathy & Ors. - Respondents
Appeal Suit No. 219 of 2014 & C.M.P. No. 10989 of 2018
Decided On : 14-09-2018
Indian Succession Act, 1925 - Section 63(c), 71 and 63 - Indian Evidence Act - Section 68 ,63,114(e) and 114(g) - Suit was filed by the first respondent/plaintiff for partition and separate possession of plaint schedule mentioned property, alternatively, to direct first appellant/first defendant to pay a sum towards maintenance, till her life time - In the said suit the trial court granted a preliminary decree of partition in favour of the first respondent/plaintiff - Aggrieved by same, appellants/defendants 1 and 2 have come forward with this appeal - First respondent in this appeal is the plaintiff in the suit - Other defendants namely defendants 3 to 5 in suit are tenants in some of the properties described in the plaint schedule, who are shown as respondents 2 to 5 in this appeal - Respondents 6 to 12 in this appeal, who are arrayed as defendants 6 to 12 in the suit, are financial institutions/Banks where the deceased was maintaining savings/fixed deposit accounts as the case may be – Held, In this case, in order to prove Will, both the attesting witnesses namely DWs 2 and 3 were examined - Court have gone through their evidence and it would only show that their deposition is natural and cogent - Even though it is contended that both DWs 2 and 3 are related to the deceased, court find nothing to discard their evidence merely because they are related to the deceased - In fact, there is nothing wrong in the testator asking the relatives to stand as a witness to the Will, which he proposed to execute - Further, from the evidence of DWs 2 and 3, we find that their deposition as regards the manner in which the testator had executed the Will is natural and trustworthy - We allow the Appeal Suit by setting aside the preliminary decree for partition made in O.S. No. 47 on the file of I Additional District Judge, Erode, Erode District. Consequently, suit in O.S. No. 47 shall stand partly allowed in so far as it relates to the alternative prayer sought for by plaintiff, by directing the first defendant in the suit to pay a sum towards monthly maintenance to the plaintiff from the date of plaint till her life time - It is made clear that in the event of failure on the part of the first defendant to pay to the plaintiff, there will be a charge over properties bequeathed in favour of the first defendant by the testator in the Will, Ex.B5 - Consequently, connected Miscellaneous Petitions are closed.
R. Subbiah, J.
The defendants 1 and 2 in O.S. No. 47 of 2011 on the file of I Additional District Judge, Erode, are the appellants herein. The said suit was filed by the first respondent/plaintiff for partition and separate possession of the plaint schedule mentioned property, alternatively, to direct the first appellant/first defendant to pay a sum of Rs.12,000/- per month towards maintenance, till her life time. In the said suit the trial court granted a preliminary decree of partition in favour of the first respondent/plaintiff. Aggrieved by the same, the appellants/defendants 1 and 2 have come forward with this appeal.
2. The first respondent in this appeal is the plaintiff in the suit. She is the wife of one K.N. Ponnusamy. After the death of her husband K.N. Ponnusamy, she has filed the suit as against the son born to K.N. Ponnusamy through his second wife and the second wife of Late. K.N. Ponnusamy and arrayed them as defendants 1 and 2 respectively in the suit. The other defendants namely defendants 3 to 5 in the suit are the tenants in some of the properties described in the plaint schedule, who are shown as respondents 2 to 5 in this appeal. The respondents 6 to 12 in this appeal, who are arrayed as defendants 6 to 12 in the suit, are the financial institutions/Banks where the deceased K.N. Ponnusamy was maintaining savings/fixed deposit accounts as the case may be. Therefore, for the sake of convenience, the parties to this appeal shall be referred to as per their litigative status in the suit as plaintiff and defendants. In effect, the appellants will be referred to as defendants 1 and 2 and the first respondent as plaintiff.
3. As per the plaint averments, the deceased Ponnusamy was the owner of large extent of agricultural lands and other properties in Vilakathi and Sivagiri Villages, Erode District. The deceased Ponnusamy also owned and possessed 35 acres of agricultural lands, some of which were cultivated by him personally while other properties were leased out to tenants. In addition, the deceased Ponnusamy owned a godown and rice mill which were also leased out to tenants. Out of the aforesaid properties, the deceased Ponnusamy was getting income of not less than Rs.1 lakh per month. After meeting the family expenses, the deceased Ponnusamy deposited the balance amount in the savings account which he maintained with the Banks/financial institutions. According to the plaintiff, the value of the movable and immovable properties owned and possessed by the deceased Ponnusamy was worth several crores of rupees. Thus, the aforesaid properties, which are morefully described in the plaint schedule, are the self-acquired properties of the deceased Ponnusamy.
4. According to the plaintiff, she did not beget a child through her husband Late. Ponnusamy and therefore her husband Late. Ponnusamy wanted to contract a second marriage and sought the consent of the plaintiff, but she refused to give such consent. Therefore, the deceased Ponnusamy persistently demanded the plaintiff to give her consent to enable him to contract a second marriage and in that context he exerted pressure on the plaintiff. Even though the plaintiff did not give her consent, the deceased Ponnusamy married the second defendant Loganayaki as his second wife, without the knowledge and consent of the plaintiff. When the plaintiff came to know about the second marriage of her husband with the second defendant, she did not object to it as she wanted to maintain the family prestige and honour. According to the plaintiff, the marriage between her husband deceased Ponnusamy and the second defendant is not a valid marriage and it is void. The second defendant, on coming to know that the plaintiff is against the marriage between her and the deceased Ponnusamy, developed hatred and aversion towards the plaintiff and portrayed an inimical attitude towards her. Since the second defendant started ill-treating the plaintiff, which the deceased Ponnusamy also
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