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2019 Supreme(Mad) 2239
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RMT. TEEKAA RAMAN, J.
Lakshmi Devi Ammal & Others - Appellants
Versus
Ezhumalai (Died) & Others - Respondents
S.A. No. 174 of 2001
Decided On : 05-11-2019
For the Appellants :Hema Sampath, Senior Counsel, R. Meenal, Advocate.
For the Respondents:N.A. Nissar Ahmed, Advocate.
Headnote:
Civil Procedure Code , 1908 – Section 100 - Indian Succession Act - Section 63 - Sections 59 - Sections 45 - Section 47 - Evidence Act - Section 68 - Section 67 - Relief of Permanent Injunction restraining defendants from alienating - Encumbering suit properties - Claim was resisted by defendants inter-alia, contending that sale deed shows that 60 cents of land was purchased - Suit properties are self-acquired properties and some items were obtained in a family arrangement between his brothers and him - No doubt, patta stood in his name - Second defendant also was in possession and was paying revenue charges - Will was executed in sound and disposing state of mind and without any compulsion - plaintiffs did not take care and other brothers also did not take care of him - Second defendant alone took care of him till his death - Last rites were performed by second defendant - First defendant is not a necessary party – Held , As stated supra, for reasons known, they have not effected any mutation to their name after death of testator and in absence of any being showing either in pleading nor deposed in his evidence Trial Court has rightly come to conclusion that defendants have not sure about truth and genuineity of document has not effected mutation of name in revenue records nor effected any explanation on that score - Furthermore, without disclosing Will, they have arranged to sell a portion of property covered along with another portion of their property and made a composite deed and obtained signature of plaintiff as could be seen also shows attitude of defendant that it is only a exercise to cover up Will and hence, non-disclosure Will for many long years, also caused serious suspicious has to be coming into existence Will - Thus, by their conduct as described supra, beneficiary under Will and attester of Will being none other son of beneficiary D1 coupled with facts that despite passing several years revenue records has not been muted in their names coupled with facts already discussed supra, this Court holds that Lower Appellate Court has committed an error in overlooking fact that Will was not proved as required under provisions and hence, first substantial question of law is answered and in affirmative in favour of appellants/plaintiffs - Appeal is allowed
JUDGMENT :
(Prayer: This Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree in A.S.No.94 of 1998 dated 18.08.1999 on the file of the Sub-Court, Madhuranthakam reversing the judgment and decree made in O.S.No.62 of 1996 dated 28.11.1997 on the file of the District Munsif's Court, Madhuranthakam.)
The unsuccessful plaintiffs are the appellants herein.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
3. The plaintiffs have filed a suit for declaration to declare Ex.A1 and Ex.A2(=Ex.B1)-Will alleged to have been executed by Kuppusamy Naicker in favour of the defendants 1 and 2 as null and void and consequential relief of Permanent Injunction restraining the defendants from alienating and encumbering the suit properties.
4. The plaint proceeds on the basis that:-
(i) one Kannappa Naicker had two sons, namely Manicka Naicker and Kishtappa Naicker. The properties of their father were divided between the two brothers and the suit properties were allotted to Manicka Naicker, the grand father of plaintiffs 1 and 2 and the great-grand-father of plaintiffs 3 and 4.
(ii) The suit properties are the ancestral and joint family properties of plaintiffs' father Kuppusamy Naicker and themselves. The plaintiffs have been in enjoyment of the suit properties. Adangal stood in their name. The first plaintiff is a child widow and was taken care of by her father.
(iii) The plaint further proceeds that taking advantage of the old age of Kuppusamy Naicker (83 yrs), defendants 1 and 2, who are his brothers, threatened him and demanded execution of registered Will, which is not binding on the plaintiffs.
(iv) Plaintiffs 1 and 2 and their paternal uncle, the 2nd defendant joined together and executed a sale deed for two items of land. This clearly shows that the suit properties were in the joint enjoyment of the parties. The plaintiffs came to know of the alleged Will. Then O.S.No.62 of 1996 was filed by the plaintiffs before the District Munsif Court, Maduranthakam.
5. The claim was resisted by the defendants inter-alia, contending that sale deed shows that 60 cents of land was purchased by Kuppuswamy Naicker. The suit properties are the self-acquired properties of Kuppusamy Naicker and some items were obtained in a family arrangement between his brothers and him. No doubt, patta stood in his name. The second defendant also was in possession and was paying the revenue charges. The Will was executed when Kuppusamy Naicker in sound and disposing state of mind and without any compulsion. The plaintiffs did not take care of Kuppusamy Naicker and the other brothers also did not take care of him. The second defendant alone took care of him till his death. The last rites were performed by the second defendant. The first defendant is not a necessary party.
6. Before the Trial Court, 5 issues are framed and there is a specific issue as to Whether Ex.B1 Will dated 2.2.1993 is true, valid and genuine?
7. On behalf of the plaintiffs, the first plaintiff has examined herself as P.W.1 and Village panchayathar was examined as P.W.2 and the Sale Deed dated 26.4.1994 executed by the plaintiffs along with the defendant in favour of Santhi lal was marked as Ex.A1. The alleged Will, the subject matter of the suit dated 02.02.1993 is marked as Ex.A2. On behalf of the defendants, the second defendant was examined as D.W.1 and son of the first defendant was examined as D.W.2 and the Villager was examined as D.W.3 and Exs.B1 to B8 were marked.
8. After scrutiny of the oral and documentary evidence, the learned District Munsif has decreed the suit, holding that:-
(i) Except for 60 cents purchased under Ex.B2 there is nothing to show that the suit properties were self acquisitions of Kuppuswamy Naicker and that he could execute a Will for the properties
(ii) The Will was attested by the second defendant's sons and the first defendant's son. They are interested witnesses.
(iii) There was no independent
