S.A.No.1150 of 2010

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 15.06.2022

CORAM:

THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

S.A.No.1150 of 2010

and M.P.No.1 of 2010

1.Selvi

2.Rajamanickam

3.Velu

...Appellants

Vs.

1.S.Madurai

2.Elumalai

3.Saraswathi

4.Bommi

5.Krishnan

6.Victoria

...Respondents

Prayer: Second Appeal filed under Section 100 of C.P.C., against the

judgment and decree dated 18.12.2009 in A.S.No.536 of 2005 on the file of

the IV-Additional City Civil Court, Chennai confirming the judgment and

decree dated 17.11.2004 in O.S.No.700 of 2000 on the file of the XIV-

Assistant City Civil Court.

1/8

https://www.mhc.tn.gov.in/judis

S.A.No.1150 of 2010

For Appellants : Mr.Poovendra Perumal

for Mr.Sai Krishnan

For Respondents

: Ms.Tamizh Selvi for R2, R3 & R6

- No Appearance

Mr.A.Vivek for R4 & R5

- No Appearance

J U D G M E N T

The defendants in O.S.No.700 of 2000 on the file of the 14th

Assistant City Civil Court, Chennai who had suffered a decree on

17.11.2005 and had also suffered an adverse judgment in A.S.No.536 of

2005 which was on the file of the IV-Additional District Court at Chennai

dated 18.12.2009 are the appellants herein.

2.The suit in O.S.No.700 of 2000 had been filed for partition and

separate possession of two schedule mentioned properties which were given

as 'A' schedule and 'B' schedule. The plaintiffs therein, sought that the

property should be divided into 17 equal parts and that they must each be

given one part each. The other parts would go to the defendants.

2/8

https://www.mhc.tn.gov.in/judis

S.A.No.1150 of 2010

3.The brief background of the facts would indicate that the

properties, originally belonged to one Govindasamy Mudaliar who had

purchased the 'A' schedule property by way of a sale deed dated 05.10.1933.

His wife, Veerammal was the owner of the 'B' schedule property having

purchased the same by sale deed dated 07.08.1943. They had one daughter,

Neelaveniammal. The plaintiffs are the daughters and son of

Neelaveniammal and the defendants are the legal representatives of another

son, Natarajan.

4.It is stated that Natarajan was looking after Veerammal after the

death of Govindasamy Mualiar and therefore, out of love and affection, she

had executed a registered Will in favour of Natarajan which Will was dated

04.06.1968 and which was marked as Ex.B2 during the course of trial.

Thereafter, Natarajan had executed another Will on 21.09.1993 which had

been marked as Ex.B1 in favour of his two sons who are shown as 2^nd and

3^rd defendants in the suit. Assailing execution of the Will and seeking

partition and separate possession, the suit had been filed.

3/8

https://www.mhc.tn.gov.in/judis

S.A.No.1150 of 2010

5.During the course of trial, to uphold the validity of the Will

unfortunately, on the side of the appellants / defendants, no witnesses were

examined. The 1^st appellant / 1^st defendant, Selvi, wife of Natarajan was

alone examined as witness. Both the Wills were not proved in manner

known to law. Both the Courts below held that the Will could not have been

executed by Veerammal over a property to which she had no right, title or

interest.

6.The learned counsel for the appellants however, made a

submission that Veerammal had a right to execute the Will with respect to

'B' schedule property. It is claimed that she had purchased the said property

out of her own belongings and therefore, she has title and interest over the

said property. But, again that fact was not established during the course of

trial or even during the First Appeal where opportunity always subsist to the

appellants to file additional evidence under Order 41 Rule 27 of C.P.C.

Unfortunately, the appellants herein / defendants did not prove either the

execution of the Wills were able to satisfy both the Courts below that

4/8

https://www.mhc.tn.gov.in/judis

S.A.No.1150 of 2010

Veerammal had right, title and inter