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HIGH COURT OF MADRAS
Hon`ble Mr.Justice P. VADAMALAI
S. MANIMARAN – Appellant
Versus
S. MURALI – Respondent
Partition - Suit for partition and injunction - Indian Succession Act, Section 63; Indian Evidence Act, Section 68 - Court affirmed the validity of the Will after evaluating evidence according to the statutory requirements.
Fact of the Case:
The plaintiff filed a suit for partition and injunction over a property inherited from their deceased father, disputing the validity of a Will allegedly executed by the father in favor of the 1st defendant. The defendants countered, stating the Will was genuine and the plaintiff was barred by limitation.
Finding of the Court:
The court found that the Will was duly executed and attested as per legal requirements, despite minor contradictions in witness testimonies. The courts below had properly appreciated the evidence without flaws.
Issues: Whether the trial court erred in dismissing the suit based on the Will's validity, the contradictory evidence of attestors and the applicability of limitation on partition actions.
Ratio Decidendi: The court reaffirmed that a mere omission in framing issues regarding a Will does not invalidate its acceptance if the facts are sufficiently examined. Proper compliance with the Indian Succession Act and Indian Evidence Act sufficed for the Will’s legitimacy.
Final Decision: The Second Appeal is dismissed.
JUDGMENT
This Second Appeal is preferred against the judgment and decree dated
23.11.2017 made in A.S.No.32 of 2017 on the file of the learned Additional District Judge (Fast Track Court), Kumbakonam confirming the judgment and decree dated 19.04.2017 passed in O.S.No.136 of 2015 on the file of the learned Additional Sub Judge, Kumbakonam.
2. The appellant is the plaintiff and the respondents are the defendants in O.S.No.136 of 2015 on the file of the Additional Sub Court, Kumbakonam. The appellant/plaintiff filed the suit for partition and permanent injunction in respect of the suit property.
3. For the sake of convenience, the parties are referred as plaintiff and defendants as arrayed in O.S.No.136 of 2015 on the file of the Additional Sub Court, Kumbakonam.
4. Case of the plaintiff:
st The plaintiff and the 1 defendant are sons of one Swamyraj. Their father Swamyraj got the suit property in a compromise decree passed in O.S.No.241 of 1993 on the file of the Sub Court, Kumbakonam. The suit in O.S.No.241 of 1993 was filed for partition among Swamyraj and his two sons, st viz., the plaintiff and the 1 defendant. Swamyraj died intestate on 13.03.2008 and after his death, the plaintiff and the 1st defendant became owners of the suit properties by inheritance. After a few years, due to difference of opinion, the 1st defendant tried to alienate the suit property in August 2009. So, the plaintiff sent letters to revenue authorities not to make any sub division and name changes in the revenue records. The 1st defendant claimed that their father Swamyraj executed a Will, dated 27.05.1998 in his favour. The Will is not true and genuine one. Swamyraj had no intention to give the suit properties to the 1st defendant. The 1st defendant executed a settlement in favour of his wife, the 2nd defendant herein. The plaintiff demanded the 1st defendant for amicable partition on 10.05.2015, but the 1st defendant refused.
Hence, the suit is filed for partition and injunction.
5. Case of Defendants 1 and 2:
It is true that the suit properties are absolute properties of the father of the plaintiff and the 1st defendant, namely Swamyraj as per the compromise decree passed in O.S.No.241 of 1993. It is not true that the suit properties are jointly owned by the plaintiff and the 1st defendant. Swamyraj executed a Will, dated 27.05.1998 in favour of the 1st defendant in a sound and disposing state of mind. He died on 13.03.2008. The 1st defendant executed a settlement in favour of his wife S.Bama, 2nd defendant through a registered settlement deed. The plaintiff neglected his father and mother. The parent lived in the custody of the 1st defendant. The Will dated 27.05.1998 executed by Swamyraj is a true and genuine one. The plaintiff has no right over the suit properties. There is no cause of action for the suit. The defendants 3 and 4 are government officials. Without notice under Section 80 of the Civil Procedure Code , the suit is not maintainable. Hence, the suit is liable to be dismissed.
6. Case of the 3 rd & 4 th defendant:-
The plaintiff unnecessarily impleaded the defendants 3 and 4 in this suit. The plaintiff has no cause of action against these defendants. Without notice under Section 80 of the Civil Procedure Code , the suit is liable to be dismissed.
7. During trial, on the plaintiff side one witness was examined as P.W.1 and marked exhibits as Ex.A.1 to Ex.A.5. On the side of the defendants four witnesses were examined as D.W.1 to D.W.4 and 14 exhibits Ex.B.1 to Ex.B14 were marked and Ex.X.1 & Ex.X.2 were also marked.
8. After hearing both sides, the learned Additional Sub Judge, Kumbakonam dismissed the suit in O.S.No.136 of 2015 by passing judgment and decree dated 19.04.2017. Aggrieved by the judgment and decree, the plaintiff preferred the Civil Appeal in A.S.No.32 of 2017 before the Additional District Court (Fast Track Court), Kumbakonam. The first Appellate Court after hearing both sides, passed judgment dated 23.11.2017 dismissing the appe
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