Back
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
Ravichandran – Appellant
Versus
Thulasiammal and Ors. – Respondents
S.A.No.1618 of 2011 and C.M.P.No.5885 of 2019
Decided On : 09-04-2019
Registration Act, - Section 42 to 46 - Evidence Act, 1872 - Section,71 - Claim share in the suit properties – E9nquiry - Properties are said to be self acquired properties - Plaintiffs daughters and defendants sons died intestate age of years and after his demise plaintiffs defendants inherited properties and they are entitled to equal share in suit properties- Despite repeated request defendants did not come forward for amicable partition - Defendants legal heirs of third plaintiff who died defendants are legal heirs of deceased second plaintiff who died - Defendants are legal heirs of deceased first plaintiff who died - First defendant has filed written statement contending suit properties are both self acquired and ancestral properties - Ancestral properties are dry lands and no income is derived from those lands –out of income from his milk business for very long time purchased properties – Held, Court has explained inter relation between Section Succession Act and Sections and of Evidence Act - In that matter only one attesting witness to will was examined to prove will but he had not stated in his deposition that other attesting witness had attested will in his presence - Other attesting witness though alive and available was not examined - Court noted relevant facts in Para judgment as follows - Attesting witness in his deposition stated that he did not know whether other attesting witness Ramakrishna Waggle was present in house of respondent at time of execution of will - He also stated that he did not remember as to whether himself and Rakia were present when he put his signature - He did not see witness Waggle at that time he did not identify person who had put thumb impression on will - Scribe Rakia in his evidence stated that he wrote will and he also stated that he signed on will deed as scribe - He further stated that attesting witnesses namely Waggle and are alive - Issue of validity will in present case will have to be considered in context of these facts - It is true that in case at hand there is no specific statement by that he had seen other attesting witness sign will in presence of testatrix but he has stated that other witness had also signed document - He has proved his signature and on top of it he has also stated in cross examination that other witness himself and one and writer of will were all present while writing will which was registered on very next day - This statement by implication and inference will have to be held as proving required attestation by other witness - This statement along with attendant circumstances placed on record would certainly constitute proving of will by other evidence as permitted by Section Evidence Act - Petition dismissed
JUDGMENT :
1. Challenge in this second appeal is made to the judgment and decree dated 15.09.2011 in A.S.No.88 of 2006 on the file of the I Additional District Court, Coimbatore, confirming the judgment and decree dated 20.02.2006 in O.S.No.1585 of 1990 on the file of the III Additional Subordinate Court, Coimbatore.
2. The parties are referred to as per their rankings in the trial Court.
3. The brief facts leading to the filing of this second appeal are as follows:
3.2 The first defendant has filed a written statement contending that the suit properties are both self acquired and ancestral properties of V. Marappagounder. The ancestral properties are dry lands and no income is derived from those lands. V. Marappagounder out of the income from his milk-business for a very long time, purchased the properties. It is his contention that V. Marappagounder had executed two registered Wills, the first one was on 16.12.1987, in which he has bequeathed the properties in favour of the defendants 1 and 2 and also in favour of the plaintiffs and the second Will was executed by him on 10.07.1989, as per the family arrangement, in which he has divided the properties and alloted the same to his sons viz., the defendants 1 and 2 and also to his grandson, the third defendant therein. The Will dated 10.07.1989, was pursuant to the family arrangement arrived at earlier by V. Marappagounder and his two sons (D1 and D2). It is further contended that the 4th defendant has entered into an agreement with V. Marappagounder for the purchase of an extent of 2 acres in Survey No.748 is not correct. Hence, prayed for the dismissal of the suit.
3.3 The second defendant has filed a written statement contending that the properties were divided and separate shares were alloted to the defendants. The suit properties are ancestral joint family properties and some of the properties were purchased in the name of the defendant's father as the Kartha of the joint family and there is no other business or source of income to the defendant's father and further contended that his father has no testamentary capacity. According to the second defendant, he has given a separate share and he is in his possession and has also constructed a new house after partition. The plaintiffs and other defendants are aware of the exclusive possession and the constructions put up by him. The alleged Will dated 10.07.1989 is not valid and binding on this defendant.
3.4 The third defendant has filed a written statement contending that the second Will executed by V. Marappagounder on 10.07.1989 while he was in the sound state of mental disposition. He has been alloted with the properties described as 'C' schedule in the Will. Further, it is contended that the division of the properties stated in the plaint is unsustainable in law and the plaintiffs are not entitled to any share in the suit properties. Hence, prayed for the dismissal of the suit.
4. On the side of the plaintiffs PW1 and PW2 were examined and Exs.A1 to A5 were marked. On the side of the defendants, DW1 to DW6 were examined and Exs.B1 to B9 were marked.
5. After taking into consideration, the evidence adduced by the respective parties, bot
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
