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2025 Supreme(Online)(Mad) 76365

IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.V. Thamilselvi, J
S.N. Shanmuga Sundaram – Appellant
Versus
Muthusamy Chettiar – Respondent
S.A. No. 620 of 2006|V.C.M.P. No. 11 of 2007

Advocates:
For the Appellants/Petitioners: S. Doraisamy
For the Respondents: V. Anandamurthy

A Will is not validly proved unless compliance with Section 68 of the Indian Evidence Act is strictly demonstrated, and revenue records like a 'Patta' are insufficient to establish absolute title over property that is established as ancestral.

Headnote:(A) Indian Evidence Act, 1872 - Section 68 - Will - Proof of execution - Requirement to examine at least one attesting witness if alive and capable of giving evidence - The courts below concurrently held that the plaintiff failed to prove the genuineness and valid execution of the unregistered Will relying on suspicious circumstances, including insertions/corrections in the document and the failure to prove the signature and capacity of the testator. (Paras 5, 6, 13)

(B) Property Law - Ancestral property - Nature of right - Mere entry in Revenue records (Patta) does not confer absolute title - The court held that the property belonged to the family predecessor and the plaintiff failed to establish that the testator had absolute title to alienate the property via Will. (Paras 14, 16)

Facts of the case:
The appellant (plaintiff) filed a suit for declaration of title and permanent injunction claiming ownership of the suit property based on a Will allegedly executed by his grandmother. The defendants contested the suit, asserting that the property was ancestral, originally belonging to their predecessor, and that the Will was a fabricated document intended to grab the property.

Findings of Court:
The Court held that the plaintiff failed to prove the Will under Section 68 of the Evidence Act. It noted deficiencies such as the non-examination of attesting witnesses, the use of different inks in the document, and contradictions in the evidence provided. Furthermore, it affirmed that a Patta entry does not equate to absolute ownership and the defendants successfully illustrated the ancestry of the property.

Issues: Whether the Will was validly proved through the evidence of the scribe and whether the property could be classified as the absolute property of the testator based on a Natham Patta.

Ratio Decidendi: A Will must be proven in strict compliance with the law, requiring evidence of valid attestation and sound mental capacity of the testator; unsubstantiated documents or revenue entries cannot override the established ancestral nature of the property. Result : Appeal dismissed with exemplary costs.

Table of Content
1. summary of procedural history and the parties' conflicting claims over property inheritance. (Para 1 , 2 , 3 , 4 , 5 , 6)
2. the appellate arguments regarding the validity of the will and the status of ancestral property. (Para 7 , 8 , 9)
3. evidentiary requirements for proving a will and the legal weight of revenue records versus title. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16)
4. final order dismissing the appeal and imposition of costs for vexatious litigation. (Para 17)

PRAYER

Second Appeal filed under Section 100 of Code of Civil Procedure, praying to set aside the judgment and decree dated 30.09.2005 passed in A.S.No.100 of 2004 on the file of I Addl. Subordinate Judge, Coimbatore, confirming the judgment and decree dated 04.03.2004 passed in O.S.No.658 of 1997 on the file of III Addl. District Munsif Court, Coimbatore.

For Appellant : Mr.S.Doraisamy

For Respondents : Mr. V.Anandamurthy

for R1, R4, R5 and R6 to R10

R2 and R3 died

JUDGMENT

Challenging the concurrent finding of the courts below in A.S.No.100 of 2004 on the file of I Addl. Subordinate Judge, Coimbatore, arising out of trial court findings rendered in O.S.No. 658 of 1997 on the file of III Addl. District Munsif Court, Coimbatore, the plaintiff preferred this Second Appeal.

2. For the sake of convenience, the parties are denoted as per the ranking in the suit.

3. Before the trial court, the plaintiff filed a suit in O.S.No.658 of 1997 against defendants 1 to 5 on the file of III Addl. District Munsif Court, Coimbatore praying for declaration to declare that he is legal heir of late Kaliathal as per the Will dated 06.09.1986 in respect of suit property and sought for permanent injunction against the defendants 1 to 5 not to cause interference in the peaceful possession and enjoyment of suit property. The subject matter of suit property is a tiled house bearing Door No.12/124, in Survey No. 166 at Madukkarai Village, Coimbatore with all amenities. The plaintiff claimed right and title over the property based on the Will dated 06.09.1986 said to be executed by his grandmother Kaliathal.

4. The contesting defendants 1 to 5 by way of written statement disputed the facts stating that the said Kaliathal has no right and title over the suit property nor she is entitled to execute the Will in favour of plaintiff, besides the alleged Will also forged one. Moreover, the alleged Will has not been executed by Kaliathal during her life time as she was 80 years old and not having testamentary capacity to execute the Will. Further, they have contented that the suit property originally belongs to Subbaraya Chettiar along with other properties and he executed a registered Will on 17.06.1948 through which, he conveyed all his properties including the suit property in favour of grandsons born through his two sons retaining life estate. The said Subbaraya Chettiar died in the year 1974 and thereafter, the 4th and 5th defendants, who were male heirs of Subbaraya Chettiar benefitted all the properties including the suit property as absolute owners as per the Will. The said Kaliathal, who is his daughter-in-law has no right and title over the property, but the plaintiff, who is daughter's son of the said Kaliathal with the intention to grab the property, fabricated the Will by giving false information, obtained patta and also instigated one J.V.George to file a suit in O.S.No. 3776 of 1996 for a money claim with the intention not to allow the 4th and 5th defendants to enjoy the suit property. Further, they have also contended that the plaintiff was never in possession of the property, but he attempted to take possession illegally and claimed right over the suit property. Therefore, they prayed to dismiss the suit.

5. Before the trial court, both parties adduced evidence to prove the execution of Will. The plaintiff examined P.W.2 said to be a witness and scribe of document and also marked the documents Ex.A1 to A6 on his side. On the side of defendants, D.W.1 was examined

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2025 Supreme(Online)(Mad) 76365

IN THE HIGH COURT OF JUDICATURE AT MADRAST.V. Thamilselvi, JS.N. Shanmuga Sundaram – AppellantVersusMuthusamy Chettiar – RespondentS.A. No. 620 of 2006|V.C.M.P. No. 11 of 2007

A Will is not validly proved unless compliance with Section 68 of the Indian Evidence Act is strictly demonstrated, and revenue records like a 'Patta' are insufficient to establish absolute title over property that is established as ancestral.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.V. Thamilselvi, J
S.N. Shanmuga Sundaram – Appellant
Versus
Muthusamy Chettiar – Respondent
S.A. No. 620 of 2006|V.C.M.P. No. 11 of 2007