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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. Subramaniam, J.
K. Chellappan – Appellant
Versus
Mrs. Pancharani and ors. – Respondents
A.S.No.174 of 2017 And C.M.P.No.7653 of 2017
Decided On : 20-12-2019
Code of Civil Procedure – Section 96 – Judgment and decree passed by the learned District Judge, District Court in Original Suit, is under challenge in the present appeal suit – Appellant in the appeal suit is the defendant in the suit and the respondents in the appeal suit are the plaintiffs in the suit – For the sake of convenience, the ranking of the parties in the appeal suit would be referred to as per their ranks in the Trial Court – Original suit was instituted by the appellant and the relationship between the parties to the original suit are not disputed – Appellant as well as the respondents are brother and sisters and the suit is instituted for partition of the suit schedule properties –Held, Appellant though relied upon the unregistered Will executed by his father in respect of the property purchased by him, the Trial Court considered the deposition of DW-2, which is of doubtful nature – This Court, on perusal of the deposition, could able to find that there are contradictions and there is no clarity in respect of the statements made by the said witness – An unregistered Will can be relied upon once it is proved beyond any pale of doubt and under suspicious circumstances, if it is found then, the genuinity of the Will cannot be trusted upon – Unregistered Will must be established beyond doubt and such unregistered Will produced by the parties must be trusted with reference to its sanctity and the manner in which the Will was executed or otherwise and moreover, the suspicious circumstances, if any – All these principles are applied in respect of suspicious circumstances raised by the parties in respect of the unregistered Will executed by the father of the plaintiffs and the defendant – Trial Court rightly arrived a conclusion that the Will produced by the defendant has no genuinity and it cannot be trusted upon on account of the fact that there are suspicious circumstances regarding its execution and the defendant had also not proved the genuinity or otherwise – Consequently, connected civil miscellaneous petition is also dismissed.
JUDGMENT :
(Appeal Suit is preferred under Section 96 of the Code of Civil Procedure against the order and decree dated 07.11.2016 made in O.S.No.13 of 2014 on the file of the learned District Judge, District Court No.II, Kancheepuram.)
The judgment and decree dated 07.11.2016 passed by the learned District Judge, District Court No. II, Kancheepuram in Original Suit No.13 of 2014, is under challenge in the present appeal suit.
2. The appellant in the appeal suit is the defendant in the suit and the respondents in the appeal suit are the plaintiffs in the suit.
3. For the sake of convenience, the ranking of the parties in the appeal suit would be referred to as per their ranks in the Trial Court.
4. The original suit was instituted by the appellant and the relationship between the parties to the original suit are not disputed. The appellant as well as the respondents are brother and sisters and the suit is instituted for partition of the suit schedule properties.
5. The brief facts set out in the plaint before the Trial Court are that the plaintiffs and the defendant are son and daughters of one Kannan and Dhanabakkiam. The father Kannan died intestate on 23.08.1996 and the mother also died intestate on 15.11.2013, leaving behind the plaintiffs and the defendant as their legal heirs. The father owned the property to an extent of 0.40 cents in Survey No.597/2 at Gerugambakkam Village, Sriperumbudur Taluk. During the lifetime of their father, he gave paddy and rice to the plaintiffs. After the death of the father, the land was cultivated by the plaintiffs. The plaintiffs and the defendant are in joint possession. After the death of the mother, the property was kept without cultivation, since the nearby areas are well developed. The entire property is undivided family property and hence all have got equal rights in the suit schedule property. It is stated that the property is not divided till date. The plaintiffs requested several times to the defendant to divide the property by mets and bounds. But the defendant failed to give any share to the plaintiffs. Now the defendant trying to alienate the property to the third parties. Therefore, the plaintiffs instituted the suit for partition.
6. The defendant before the Trial Court in his written statement disputed the contentions in the plaint by stating that the property to an extent of 0.39 cents in Gerugambakkam village was originally owned by the grandfather of the defendants Mr.Munusamy, S/o.Munian @ Pithan. He purchased the property from Dhanammal on 29.11.1937 under a registered Sale Deed. He had 3 sons, namely, Kannan, Kuppan and Varadhan. After demise of Munian, his above 3 sons partitioned the above land and got 0.13 cents equally. Accordingly, the defendant's father got 0.13 cents.
7. The defendant further said that the family members of the plaintiffs are agricultural labourers and daily wages. Hence to meet out the family expenses, the abovesaid Kuppan and Varadhan sold their total shares of 0.26 cents to the father of the defendant. At the time, the defendant was a Government Employee and he paid the entire sale consideration from his own savings and completed the Sale Deed on 27.11.1972 in favour of his father to dignify him. The defendant is the only son to look after his family, since his father was a drunken and sick man. He had no means to purchase the said land. It is contended that the plaintiffs got married and therefore, they are not entitled for the suit schedule property.
8. The defendant contended that after marriage, they have no share in the properties as they were ousted from the property more than the statutory period. This apart, it is contended that the defendant married at the age of 33 after settling the family expenses. The parents also lived with him. The father had executed an unregistered Will dated 28.07.1995 for the extent of 39 cents out of which 26 cents were purchased by the defendant himself. He was left a message in his Will to get consent and approv
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