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2019 Supreme(Mad) 3250
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Sarasa @ Saraswathy – Appellant
Versus
Jayabal and Others – Respondents
A.S. No. 38 of 2013, M.P. No. 1 of 2013
Decided On : 12-12-2019
Advocate Appeared:
For the Appellant : A. Muthukumar.
For the Respondents: T. Saikrishnan, M/s. Sai and Bharath.
Headnote:
Civil Procedure Code, 1908 - Section 96 - Evidence - Suit property - Suit property is self acquired property of deceased Chattier and first defendant had neglected deceased and even daughters of born through his first wife did not evince interest on his well being and during his last days it was only plaintiff who was staying with him and was having food only in house of plaintiff and defendants were not even on talking terms and in sound disposing state of mind and health executed will on bequeathing suit property in favors of plaintiff and first defendant as detailed there and not made any provisions to his daughters born though his first wife and above said will had been registered and prior to his he was not in sound state of health and mind for about two years – Held, Main argument put forth by plaintiff’s counsel for discrediting will is that first defendant was also present at time of execution of said will - No doubt materials placed on record go to show presence of first defendant at time of execution of will – However other than his presence when there is no other material to hold that first defendant had exercised any sort of influence or force on execution will preparation of same or dominated will of in preparation will to his benefit and when it is found that Retina Chatters main object is to protect property and give same exclusively to his only son namely first defendant and when Retina Chattier had chosen to exclude not only plaintiff but also his other two daughters born through his first wife full blood sisters of first defendant in such view of matter mere presence of beneficiary at time of will said factor alone would not render will in question as invalid or unacceptable - When there is no material placed that beneficiary had taken any active role in preparation of will and dominated will of testator or forced him to write will and on other hand when will in question is found to have been prepared as per directions of testator and will had come to be executed by testator on his own volition knowing contents thereof and testator also assigned reason for executing same and also for cancelling earlier will executed by him in such view of matter in my considered opinion presence of beneficiary at time of will sans any proof that he had taken active role with reference to execution of same in any manner as above pointed out would not render will unacceptable or invalid – Appeal dismissed
JUDGMENT :
T. RAVINDRAN, J.
Prayer: First Appeal filed under Section 96 of Civil Procedure Code, against the judgment and decree passed in O.S. No. 48 of 2002 dated 12.12.2012 on the file of the Court of District Judge, Karaikkal.
1. Aggrieved over the judgment and decree dated 12.12.2012 passed in O.S. No. 48 of 2002, on the file of the District Judge, Karaikkal, the plaintiff has preferred the first appeal.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
3. Suit for partition and future mesne profits.
4. The case of the plaintiff, in brief, is that she is the only daughter of the deceased Rathinam Chettiar through his second wife Vasantha. The first defendant is the only son of the deceased Rathinam Chettiar, through his first wife Saraswathy. Rajeswari and Jamuna are the daughters of the deceased Rathinam Chettiar through his first wife Saraswathy. The suit property is the self acquired property of the deceased Rathinam Chettiar and the first defendant had neglected the deceased Rathinam Chettiar and even the daughters of the Rathinam Chettiar born through his first wife did not evince interest on his well being and during his last days, it was only the plaintiff who was staying with him and Rathinam Chettiar was having food only in the house of the plaintiff and Rathinam Chettiar and the defendants were not even on talking terms and, in a sound disposing state of mind and health executed a will on 18.03.1993 bequeathing the suit property in favour of the plaintiff and the first defendant as detailed thereunder and not made any provisions to his daughters born though his first wife and the abovesaid will had been registered and prior to his death on 27.11.1998, he was not in a sound state of health and mind for about two years. The first defendant forceably took Rathinam Chettiar from the custody of the plaintiff and was keeping him under his control and the plaintiff was not even allowed to see him and on the demise of Rathinam Chettiar, the will executed by him on 18.03.1993 had come into effect. Thus, the plaintiff became entitled to the northern half of the suit property and the first defendant became entitled to the southern half. The first defendant did not take steps to allot her share of the property despite several requests made by the plaintiff and issuance of the legal notice on 01.10.1999 and on the other hand, the first defendant sent a reply notice on 07.10.1999 whereunder he had set up a will dated 02.01.1996 alleged to have been executed by Rathinam Chettiar giving the suit property exclusively to the first defendant. However, the abovesaid will projected by the first defendant is not true and hence, according to the plaintiff, she has been necessitated to lay the suit for appropriate reliefs.
5. The first defendant resisted the plaintiff's suit contending that the relationship between the parties is true and put forth the case that it is false to state that he and his sisters had not looked after Rathinam Chettiar and that Rathinam Chettiar was in the exclusive maintenance of the plaintiff. Further, according to the first defendant, Rathinam Chettiar was living only with him and in a sound state of mind and health, he executed a will on 02.01.1996 bequeathing the suit property belonging to him exclusively in favour of the first defendant and the will had been registered and by way of the said will, Rathinam Chettiar had cancelled the earlier will executed by him and the case of the plaintiff that Rathinam Chettiar was not maintaining good health during his last days is false. Rathinam Chettiar died on 27.11.1988 and on his demise, the last will executed by him on 02.01.1996 has come into force. To the notice issued by the plaintiff, the first defendant had sent a suitable reply containing true facts and the plaintiff is not entitled to seek the relief of partition without challenging the will dated 02.01.1996 executed by Rathinam Chettiar and on that ground alo
