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2025 Supreme(Mad) 2686
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N.Sathish Kumar, J.
Reji Abraham - Appellant
Versus
Abraham Saji and ors. - Respondents
Appeal Suit No.173 of 2022 and C.M.P.Nos.6299 of 2022 & C.M.P.No.4158 of 2025
Decided On : 07-04-2025
Advocate Appeared:
For the Appellant : Mr. R.Bharath Kumar
For the Respondent: Mr. K.K.Sivashanmugam
A person may execute a will even in poor health if they retain sound mind; dispute over property can arise when beneficiaries challenge the will while accepting its terms.
Headnote:(A) Indian Succession Act, 1925 - Section 180 - Partition suit - The suit concerned rights in properties following the death of N.K. Abraham, wherein a WILL dated 05.02.2009 was executed bequeathing properties among children - The trial court granted a preliminary decree for certain shares to the plaintiff, which led to the appeal - The primary dispute was regarding the validity of the WILL executed by N.K. Abraham and its implications on property rights. (Paras 1-52)
(B) WILL validity - The court examined whether the WILL was executed in a sound disposing state of mind - It was concluded that mere health issues do not negate one's capacity to execute a WILL; absence of suspicious circumstances upheld its validity. (Paras 36-50)
(C) Additional evidence - The court emphasized that the introduction of additional evidence at the appellate stage is restricted and typically not allowed to fill gaps in the original case. (Paras 19-20)
| Table of Content |
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| 1. appellant's claim and suit basis (Para 1 , 2 , 3 , 4) |
JUDGMENT :
N.Sathish Kumar, J.
Aggrieved by the decree and judgement dated 03.02.2022 passed by the learned Additional District Judge at Coimbatore in O.S.No.333 of 2016 decreeing the suit in part and thereby granting a preliminary decree in respect of one-fourth share in the undivided one-half share in Item-II(a) of the suit schedule properties and one-fourth share in the ground floor in Item-II(b) of the suit schedule properties and also one-fourth share in the undivided one-half share in the front open space, vacant space surrounding the building, staircase, terrace, out house and two water tanks with electric motor in Item-II(b) of the suit schedule properties, the 2nd defendant has come up with the present appeal suit.
2. The appellant is the 2nd defendant; the 1st respondent is the plaintiff and the respondents 2 and 3 are the defendants 1 and 3 respectively in the suit in O.S.No.333 of 2016.
3. For the sake of convenience, the parties will hereinafter be referred to as per their array in the original suit before the trial court.
4. The suit was filed for a decree and judgement of declaration, declaring that the plaintiff is entitled to one-fourth share in the suit schedule mentioned properties and for a direction for the division of the suit schedule mentioned properties by metes and bounds into four equal shares and allotment of one such share to the plaintiff; and for the costs of the suit.
A. Case of the Plaintiff:
5.1 The plaintiff and the 2nd defendant are the sons and the defendants 1 and 3 are the sons and daughters of late N.K. Abraham and late Lilly Kutty Abraham. The mother of the plaintiff, Lilly Kutty Abraham acquired the Item-I of the suit properties through a sale deed dated 01.12.2004. N.K. Abraham owned Item-II of the suit schedule of properties. Lilly Kutty Abraham, the mother of the plaintiffs and defendants passed away on 01.07.2011.
5.2 After the death of their mother, on 05.02.2009, their father had executed a WILL bequeathing all his properties, including the property of their mother, Lilly Kutty Abraham, to the plaintiff and the defendants 1 to 3. The said WILL is valid only with respect to the self-acquired properties of Abraham. Since her mother died intestate, her properties have to be devolved on her legal heirs as per the law of succession.
5.3 Further, according to the plaintiff, he and defendants 1 to 3 are entitled to one-fourth share each in Item-I of the suit schedule properties. So also, he and the defendants are entitled to a share in the properties bequeathed to their sister Usha, who is the other daughter of N.K. Abraham and Lilly Kutty Abraham. The said Usha died on 12.07.2011, issueless. When he (plaintiff) sought a partition of properties left behind by Lilly Kutty and Usha, the 2nd defendant did not come forward for partition. Hence, the suit.
[(B) Case of the 2nd defendant:]
6.1 The 2nd defendant in his written statement admitted the fact that his father N.K. Abraham died on 01.07.2011 and his mother Lilly Kutty died on 13.12.2008. According to him, the plaintiff is permanently settled in Kuwait, while the 1st defendant has settled in Jamshedpur. The 3rd defendant has no children and is divorced. Usha, the other sister also, died without issues.
6.2 The 2nd defendant, however, denied the fact that N.K.Abraham executed a WILL on 05.02.2009. According to him, the attesting witnesses to the WILL are close associates of the plaintiff and with their assistance, the WILL was created by the plaintiff to defeat his (2nd defendant's) right in the suit properties.
6.3 According to the 2nd defendant, his father, the testator of the WILL was suffering from diabetes, renal disease and also from dementia and his toe was amputated due to the complications of diabetes. His father was not in a sound disposing state of mind at the time of execution of the alleged WILL. The WILL came into existence on the 54th day after the demise of wife
