Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Mad) 2644

IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. KARTHIKEYAN, J.
Annapoorani (died) & Another - Appellant
Versus
Muthusamy (died) & Others - Respondent
S.A. No. 612 of 1996 & CMP. No. 20712 of 2021
Decided On : 26-08-2022

Advocates appeared:
For the Appellants:N. Manokaran, D.R. Arunkumar, Advocates. For the Respondents:R9 to R15, C.R. Prasanan, Advocate, R1 to R3, Died, R5, to R8, No Appearance.

The main legal point established in the judgment is the necessity of following the prescribed legal procedures, including examining attesting witnesses, for proving a Will.

Headnote:
Will - Proof of Will - Sections 68, 69 of the Indian Evidence Act, 1872 - The judgment discusses the procedure for proving a Will, including the necessity of examining attesting witnesses, following Order 16 Rule 10 CPC, and resorting to Section 69 of the Indian Evidence Act if attesting witnesses are not available.
Fact of the Case:

The plaintiff filed a suit seeking declaration of title over a property based on a registered Will executed by her father. The trial court decreed the suit, but the appellate court set aside the decree, leading to the second appeal.
Finding of the Court:

The court held that the trial court erred in comparing signatures and not following the proper procedure for proving the Will. It emphasized the necessity of examining attesting witnesses and following the prescribed legal provisions.
Issues: The issues revolved around the proof of the Will, entitlement for declaration of title, possession of the property, and the duty of the propounder of the Will.
Ratio Decidendi: The court emphasized the importance of following the prescribed legal procedures for proving a Will, including examining attesting witnesses, following Order 16 Rule 10 CPC, and resorting to Section 69 of the Indian Evidence Act if attesting witnesses are not available.
Final Decision: The second appeal was dismissed with costs, and the related petition was also dismissed.

JUDGMENT

(Prayer: The Second Appeal is filed under Section 100 of CPC, against the judgment and decree dated 07.12.1995 passed in A.S.No.69 of 1995, on the file of the Subordinate Court, Udumalpet, reversing the judgment and decree dated 04.04.1995 passed in O.S.No.797 of 1992 on the file of the District Munsif Court, Pollachi.)

1. The plaintiff in O.S.No.797 of 1992 on the file of the District Munsif Court at Pollachi is the appellant herein. The suit in O.S.No.797 of 1992 had been filed by the plaintiff, Annapoorani against her two brothers, Muthusamy Gounder and Ponnusamy Gounder and two sisters Devathaal and Nallathaal seeking declaration of title over the suit schedule property and consequential permanent injunction restraining the defendants from interfering with her peaceful possession of the suit schedule property.

2. The suit schedule property was vacant Punja land measuring 2.10 acres at Vettaikaran Pudur Village, Pollachi, now Thiruporur District, erstwhile Coimbatore District.

3. By judgment dated 04.04.1995, the District Munsif, Pollachi, decreed the suit. The defendants then filed A.S.No.69 of 1995 before the Sub Court, Udmalpet. By judgment dated 07.12.1995, the appeal suit was allowed and the decree granted in O.S.No.797 of 1992 was set aside. The plaintiff then filed the present second appeal.

4. The second appeal had been admitted on 22.04.1996 on the following substantial question of law:

“Whether the judgment of the Lower Appellate Court reversing that of the Trial Court is vitiated by its failure to consider the entire evidence and apply the correct principles of law?”

5. On hearing both the learned counsels, the following further substantial questions of law had been framed on 23.06.2022;

“1.Whether the Trial Court can presume that the attesting witnesses are not available merely because the plaintiff had not taken steps to produce them or whether it is incumbent on the part of the Trial Court to insist on the propounder of the Will to go through the process under Section 68 of the Evidence Act which states that the attesting witness should be called and if the attesting witness does not answer to such summons, whether the Trial Court should further take recourse to Order 16 Rule 10 of CPC and then come to a conclusion to proceed Section 69 of the Evidence Act?

2.Whether the propounder of the Will has a duty to go through the process under Section 68/ Order 16 Rule 10 of the CPC and then insist upon examination of witnesses as provided under Section 69 of the Evidence Act?

3.Whether in the absence of any attesting witness, can examination of the identifying witness in a registered document be considered to be compliance of the proof of the documents required to be proved under Sections 68/69 of the Evidence Act?”

6. Pending the second appeal, the appellant/plaintiff in the suit died and her legal representative was brought on record as second appellant. The first, second and third respondents also died and their legal representatives were brought on record as 5th to 15th respondents.

7. O.S.No.797 of 1992 (District Munsif Court, Pollachi)

In the plaint, it had been stated that the father of the plaintiff Venkidusamy Gounder, who was the owner of the suit schedule property, had bequeathed the property by way of a registered Will dated 22.06.1969 in favour of the plaintiff. It was stated that he had executed the Will in a sound state of mind and on his own volition. It was stated that he died on 11.12.1992. It had been further stated that the defendants who were her brothers and sisters tried to dispossess the plaintiff. Under those circumstances, the suit was filed for declaration of title and for permanent injunction.

8. The first defendant filed a written statement which was adopted by the 2nd to 4th defendants. It was claimed that the suit schedule property was cultivated by the first defendant. It was specifically denied that their father Venkidusamy Gounder executed any Will much less the Wi