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2020 Supreme(Mad) 77
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. SATHISH KUMAR, J.
A. Krishnammal (Died) & Others - Appellant
Versus
Subbulakshmi & Others - Respondent
S.A.(MD)Nos. 513 of 2013 & 907 of 2013 & M.P.(MD)Nos. 1 of 2013, 1 of 2014, 1 of 2015 in S.A.(MD)No.513 of 2013 & M.P.(MD)Nos. 2 of 2013, 1 of 2015 & C.M.P.(MD)No. 9746 of 2017 in S.A.(MD)No.907 of 2013
Decided On : 28-02-2020
For the Appearing Parties:Veera.Kathiravan, Senior Counsel for M/s.Veera Associates, S. Meenakshi Sundaram, Senior Counsel, R.T. Arivukumar, A. Arumugam, R. Mani Maran, D. Nalla Thambi, Advocates.
Headnote:
Civil Procedure Code,1908 - Section 100 - Indian Evidence Act, 1872 - Sections 69, 70 and 71- Power of attorney is a registered - First defendant has been appointment - Properties originally belonged to the husband of on mother of said and the first plaintiffs mother were sisters first defendant is the sisters son of first plaintiff husband of died issueless and first plaintiff has taken care of the said has left Will while in sound disposing state mind in favour first plaintiff bequeathing the suit properties - Thereafter first plaintiff has gone out for his work first defendant has been appointed to take care of said by first plaintiff at for monthly salary and the first plaintiff had jointly deposited a Central Bank of India besides first plaintiff has opened Account in the name of in Account on prior to her death she was bedridden for more than a year and more than three months she was at comatose stage. After the demise first defendant was acting against the plaintiffs and caused disturbance from enjoying suit properties –Held, Court has erred by framing the question of law in manner in which he has - It was submitted that when trial court and first appellate court have given a concurrent finding about invalidity of will it was a finding and the High Court could not have disturbed finding of fact by framing a question of law as to whether the finding was bad in law and perverse or contrary to the evidence on record. Reliance was placed in this behalf on observations of this Court in Narayanan reported Court may however note this behalf that as held by a Constitution Bench of this Court in Mehta Vs. Century Spinning and Manufacturing Company reported is well settled that the construction of document title or of a document which is the foundation of rights of parties necessarily raises a question of law - That apart as by a bench of three judges reported whether a particular question is a substantial question of law or not depends on the facts and circumstances of each case. When the execution of the will and construction thereof was subject matter of consideration framing of the question of law cannot be faulted Considering and circumstance as narrated above and also on perusal of the entire evidence as discussed above, this Court is of the view that Will projected and filed is highly doubtful as testatrix fell ill seriously on the same day and admitted in hospital and could not have executed the Will All these clearly show that the Will has not been proved in proper manner - Accordingly all substantial questions of law are answered – Petition dismissed
JUDGMENT
Aggrieved over the reversal finding of the first Appellate Court, declaring that the suit second schedule 1, 2, 3 and 6 item of the properties belong to the plaintiffs, the appeal in S.A.(MD)No.513 of 2013 came to be filed by the defendants 2 and 6 in O.S.No.109 of 2003.
2. Aggrieved over the concurrent finding of the Courts below, S.A.(MD)No.907 of 2013 is filed by the defendants 1, 3 and 5.
3. Both the appeal suits arose out of the judgment and decree passed in O.S.No.109 of 2003 on the file of the Sub Court, Ambasamudram.
4. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court.
5. The plaintiffs' case, in brief, is as follows:
The suit properties originally belonged to the husband of one Chellammal. The mother of the said Chellammal and the first plaintiff's mother were sisters. The first defendant is the sister's son of the first plaintiff. The husband of Chellammal died issueless and the first plaintiff has taken care of the said Chellammal. Chellammal has left the Will dated 21.10.1992 while in sound disposing state of mind in favour of the first plaintiff bequeathing the suit properties. Thereafter, the first plaintiff has gone out to Rajapalayam for his work. The first defendant has been appointed to take care of the said Chellammal by the first plaintiff at Ambasamudram for monthly salary. Chellammal and the first plaintiff had jointly deposited a sum of Rs.45,000/- at the Central Bank of India, Ambasamudram, besides, the first plaintiff has opened S.B. Account in the name of Chellammal in Account No.4147. Chellammal died on 15.3.2001, prior to her death, she was bedridden for more than a year and more than three months, she was at comatose stage. After the demise of Chellammal, the first defendant was acting against the plaintiffs and caused disturbance from enjoying the suit properties. The first plaintiff, therefore, issued a legal notice on 06.10.2001. The first defendant did not give any reply. Whereas, the fourth defendant has issued reply notice with false averments. The alleged power deed dated 12.01.2001 and the Will dated 28.02.2001, are all denied. Chellammal was in the hospital prior to 12.01.2001. She was not in state of mind to execute any document. The documents have been created with forgery by impersonation. Besides, Chellammal was not in a position to take any decision at the relevant point of time. Hence, the suit.
6. The first defendant filed a written statement and the same was adopted by the defendants 3, 4 and 5. Admitting the relationship, it is the contention of the first defendant that it is false to state that the first plaintiff had taken care of Chellammal and the said Chellammal executed a registered Will dated 21.10.1992 in favour of the first plaintiff. Similarly, it is denied that the first defendant has been appointed as the servant for taking care of Chellammal. It is stated by the first defendant that Chellammal was residing at Ambasamudram till her death and few days prior to her death, she was admitted in Shifa Hospital, Tirunelveli and taken to Rajapalayam, thereafter, she died in a few days. It is denied that Chellammal was bedridden for more than a year prior to her death and she was in comatose stage for more than three months. The properties were never in possession of the plaintiffs. The properties of Chellammal situated at Mela Ambasamudram Thilagarpuram Street are in possession of the first defendant. The first defendant is residing at Door No.5. Door No.6 is under the enjoyment of the fourth defendant as tenant. On 12.01.2001 Chellammal executed a registered general power of attorney in favour of the first defendant. In pursuance of the above said power, the first defendant has sold the property to one Krishnammal. The alleged impersonation and forgery is also denied. Besides, Chellammal also executed a the Will dated 28.02.2001 while sound state of mind and registered the same. As per the Will, the first defendant
