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2025 DAILYLAW 8627 (MAD)

Savithiri v. C. Varadharaj

2025-08-19

M Jothiraman

body2025
JUDGMENT : Unsuccessful defendants have preferred the present appeal. The suit is filed for partition and for permanent injunction. The trial Court decreed the suit for directing the division of the suit property into three equal shares and one such share shall be allotted to the plaintiffs 1 to 3 and one such share shall be allotted to the 4 th plaintiff. The plaintiffs are entitled for the relief of permanent injunction in respect of their 2/3 rd share in the suit properties till the passing of final decree. The parties are referred as per their ranking in the trial Court. 2. The brief case of the plaintiffs is as follows:The suit property is originally belonged to one Karae Gowder by virtue of a registered sale deed dated 02.04.1963. He died on 08.08.1988. He had two sons viz., Chinnasamy and Palanisamy respectively and one daughter viz., Rathinam/4 th plaintiff herein. The said Chinnasamy pre-deceased his father on 27.06.1986, and the said Chinnasamy's widow also died on 01.10.1995. On the death of Karae Gowder, the following were the legal and natural heirs: a. Widow Nanjammal @ Nanjakkal b. Children of pre-deceased Chinnasamy c. daughter Rathinam/4 th plaintiff d. Palanisamy – second son – he died later on 08.03.2011 e. Palanisamy's heirs are defendants No.1 Widow, No.2. Son and No.3 Daughter. 3. The daughters of Plaintiff No.4 and children of the sons defendants 1 to 3 succeeded as heirs of the each group becoming entitled to get 1/3 share. The second defendant died intestate and the 6 th defendant is also one of the heir of the second defendant. 4. The second defendant had purported to execute an alleged settlement deed dated 29.11.2013 of a portion of a suit property to his wife 4 th defendant. The second defendant had also executed an alleged sale deed dated 28.03.2013 for another portion of the suit property to the 5 th defendant (who is the husband of one Jayalakshmi/3 rd defendant herein). The second defendant pretends and reacts as if Karae Gowder had executed an alleged Will dated 29.06.1987 in favour of the second defendant alone. The said Karae Gowder had never executed any Will and he had suffered from Cancer for more than three years before death and never in a physical or mental condition and he was under the care and custody of the 4 th plaintiff. The said Karae Gowder had never executed any Will and he had suffered from Cancer for more than three years before death and never in a physical or mental condition and he was under the care and custody of the 4 th plaintiff. A registered general power of attorney dated 13.06.2008 among others by the son Palanisamy and daughter, the 4 th plaintiff and the plaintiffs 1 to 3 and defendants 2 and 3 in which categorical declaration is Karae Gowder died interstate. A declaration executed before a Notary Advocate on 07.05.2008 by the son Palanisamy, father of the second defendant and 4 th plaintiff and plaintiffs 1 to 3, are declaring that the said Karae Gowder died intestate. The alleged deed of settlement and alleged sale are void and cannot affect the 2/3 share of the plaintiffs. The defendants 4 and 5 cannot derive any title and at anyrate only the 1/3 rd share of Palanisamy. Hence, the suit. 5. The brief case of the defendants is as follows: The written statement filed by the second defendant is adopted by the defendants 1, 3 to 5. They denied that the said Karae Gowder died intestate. The widow of Karae Gowder also died on 28.08.1996 and 4 th plaintiff and defendants 1 to 3 succeeded as heirs, but it is denied as false. The suit property was self-acquired property of Late Karae Gowder and thereafter, he enjoyed the same and executed registered Will in favour of second defendant/Rangaraj. Hence, the plaintiffs have no right to claim partition. The question of demanding partition does not arise. On the strength of valid right and entitlement over the suit property, the second defendant executed a registered settlement deed dated 29.11.2013 of a portion of the suit property to his wife/4 th defendant and also executed a sale deed dated 28.03.2013 in favour of the 5 th defendant with respect to portion of a suit property. The Will with respect to the suit property has been executed by the said Karae Gowder on his own hale and healthy and normal mental condition and the recitals of the Will clearly establish the same. All along the period from 29.06.1987 till date the plaintiffs never challenged the legal validity of the Will. 6. The additional written statement filed by the 4 th defendant is adopted by the defendants 1 to 3 , 5 and 6. All along the period from 29.06.1987 till date the plaintiffs never challenged the legal validity of the Will. 6. The additional written statement filed by the 4 th defendant is adopted by the defendants 1 to 3 , 5 and 6. The suit schedule property was self-acquired property of late Karae Gowder by virtue of a registered sale deed dated 02.04.1963. Thereafter, he enjoyed the same and he executed a Will in favour of the second defendant on 29.06.1987. The said Karae Gowder died intestate on 08.08.1988, after death of the Karae Gowder, the second defendant is the absolute owner of the suit property and he enjoyed the same. The second defendant died on 01.08.2016. During his life time, the second defendant executed a registered settlement deed dated 29.11.2013 for a portion of the property to his wife and also executed a sale deed dated 28.03.2013 in favour of the 5 th defendant with respect of the portion of the suit property. The 6 th defendant is the son of the second defendant and he had also right over the suit property and that the relief sought for by the plaintiffs are not binding on the defendants and prays to dismiss the suit. 7. Based on the above pleadings, the trial Court has framed the following issues: 1. Whether the plaintiffs are entitled to the relief of partition as prayed for? 2. Whether the plaintiffs 1 to 3 are entitled to 1/3 rd share and the 4 th plaintiff is entitled to 1/3 rd share as prayed for? 3. Whether the plaintiff 's are entitled to the relief of permanent injunction as prayed for? 4. To what other relief the plaintiff is entitled to? During the trial, on the side of the plaintiffs, the first plaintiff himself examined as PW1 and Ex.A1 to Ex.A11 were marked. On the side of the defendants, One Rangaraj was examined as DW1, Jayalakshmi was examined as DW2, one Savithri was examined as DW3 and one Anjalidevi was examined as DW4 and Exs.B1 was marked. Ex.X1 and X2 also marked. 8. The findings of the trial Court: It is the bounden duty of the defendants to prove that Karae Gowder was in sound disposing state of mind at the time of execution of Will. The execution of Ex.B1 was not proved by the defendants in the manner known to law. Ex.X1 and X2 also marked. 8. The findings of the trial Court: It is the bounden duty of the defendants to prove that Karae Gowder was in sound disposing state of mind at the time of execution of Will. The execution of Ex.B1 was not proved by the defendants in the manner known to law. The defendants failed to prove the validity and genuineness of the Will as contemplated under Section 68 and 69 of the Indian Evidence Act . The plaintiffs being legal heirs of Karae Gowder, is entitled to 2/3 share from the suit properties and they are entitled for the relief of permanent injection to that extent till the passing of final decree. 9. The learned counsel appearing for the appellants/defendants would submit that the trial court has not framed any issues with respect to the genuineness of the Will. However, it came to a conclusion that the Will is not proved and the same caused great prejudice on the defendants. Further, the defendants have lost their opportunity to prove the Will in accordance with law as there is no specific issue framed pertaining to the Will. The trial Court has failed to consider that the description of the property described in the plaint is to cents of agricultural land. However, there is no such agricultural land available in the schedule of property. On the other hand, an RCC house is available which could be proved by Ex.A11. As per the evidence of DW4, who is the staff of the registering authority have clearly deposed that the Will was presented for execution by the executant himself i.e. Karae Gowder. The trial Court failed to consider the evidence of DW4. In her evidence, she fulfilled the necessary ingredients contemplated under 68 and 69 of the Evidence Act. The trial failed to presume the fact that the said Karae Gowder was ill as contemplated under Section 114 of Indian Evidence Act . 10. The learned counsel would further submit that the trial Court has failed to consider the legal position that the party who took plea of the surrounding circumstances of the execution of the Will is doubtful, has to prove the same. The plaintiff thought took the plea that the executant of the Will, was suffering from cancer, they have not proved the same. The plaintiff thought took the plea that the executant of the Will, was suffering from cancer, they have not proved the same. Further, the suspicious surrounding circumstances, the execution of the Will is not at all proved by the plaintiff. To strengthen his contentions, the learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court of India reported in AIR 2005 SC 780 in the case of Sridevi Vs Jayaraja Shetty and others to show that in a case person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. Another judgment reported in 2024 SCC online SC 3223 in the case of Shyam Kumar Inani Vs. Vinod Agarwal and others wherein it has been held that when fraud and misrepresentation are alleged by the defendants, the burden of proof lies upon them to substantiate such claims. Another judgment reported in AIR 1959 Supreme Court 443 in the case of H.Venkatachala Iyengar Vs.Thimmajamma and others wherein it has been held that it is true that if the caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators, but even without such pleas circumstances may raise a doubt as to whether the testor was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Another judgment reported in 2025 INSC 879 in the case of Metpalli Lasum Bai (Since dead) and others Vs. Metapalli Muthaiah (D) by LRS to show that the Will is a registered document, the burden would lie on the party who disputed its existence thereof, who would be defendant – Muthiah in this case, to establish that it was not executed in the manner as alleged or that there were suspicious circumstances which made the same doubtful. Metapalli Muthaiah (D) by LRS to show that the Will is a registered document, the burden would lie on the party who disputed its existence thereof, who would be defendant – Muthiah in this case, to establish that it was not executed in the manner as alleged or that there were suspicious circumstances which made the same doubtful. The learned counsel would rely upon the judgment of this Court reported in 1968 SCC Online Mad 158 in the case of RM.AK.P.Kannammal Achi and other vs. A.N.Narayanan Chettiar to show that while the burden on the propounder of the Will is to show that the testator executed the Will in his right mind and with disposing mental capacity, the caveator to succeed and have the will thrown out should establish that the will was executed under undue influence and the evidence in regard to this must be of the exercise of influence either by coercion or by fraud. Mere persuasion and importunity which do not unduly overbear the Will of the testator would not be undue influence that would vitiate the Will. Another judgment reported in AIR 1999 Madras 40 in the case of S.Kaliyammal and other Vs. Palaniammal and others to show that when the execution of a will is denied by a party, then the burden is on the party who relies upon the will to prove the execution of the same. When the execution is not denied, it is unnecessary to compel the person who relies upon the document to let in evidence to establish the execution since the admitted facts need not be proved. 11. Per contra, the learned counsel appearing for the respondents/plaintiffs would submit that the execution of the Will has not been proved by the defendants, the propounder of the Will is bound to prove the execution of Will whether it is denied or not as per 68 of the Indian Evidence Act . Even though the plea of the defendants is that both testators were not available, the Will can be proved by resorting the procedure laid down under Section 69 of . But the defendants have not taken any steps to secure the attesting witnesses and no documentary evidence produced by the defendants regarding the death of the attestors. Even though the plea of the defendants is that both testators were not available, the Will can be proved by resorting the procedure laid down under Section 69 of . But the defendants have not taken any steps to secure the attesting witnesses and no documentary evidence produced by the defendants regarding the death of the attestors. The defendants failed to establish the factum of alleged non availability of the attesting witnesses without proving the Will in the manner of law, the defendants claiming their right over the Will, does not sufficient to believe the document as a genuine Will of the testator. To strengthen his contention, the learned counsel relied on the judgment rendered by the Hon'ble Supreme Court in the case of Malliga Vs. P.Kumaran reported in 2022 SCC online Mad 1289 wherein it has been held that A Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free Will. Yet another judgment relied upon by the learned counsel in the case of Narasimha Bhattar Vs. Venkatesan and 10 others reported in 2024 (3) MWN (Civil) 134 to show that whether the execution of Will is seriously disputed or not, the same has to be proved in terms of Section 63 (a) of read with Section 68 of the . If both the attestors are dead, the propounder of the Will can lead other evidence as contemplated under Section 69 of the Evidence Act and proceed to prove the Will. There is no reason to interfere with the impugned judgment decree of the Court below. 12. This Court has considered the submissions made on either side and perused the records. 13. The points for determination arise in this appeal is that (i) Whether the plaintiffs are entitled to the relief of partition and for permanent injunction as prayed for? (ii) Whether the Will in Ex.B1 = Ex.X2 has been proved in a manner known to law? 14. 13. The points for determination arise in this appeal is that (i) Whether the plaintiffs are entitled to the relief of partition and for permanent injunction as prayed for? (ii) Whether the Will in Ex.B1 = Ex.X2 has been proved in a manner known to law? 14. It is not in dispute that the suit property originally belonged to the Karae Gowder and the same was purchased by him under the registered sale deed dated 02.04.1963 under Ex.A1. The said Karae Gowder died on 08.08.1988. The relationship between the parties are not disputed. According to the Plaintiffs, the said Karae Gowder died intestate and hence, his sons and daughter are entitled for partition as prayed for. According to the defendants, the suit property is a self- acquired property of the said Karae Gowder and he had executed a registered Will dated 29.06.1987 in favour of his grandson Rangaraj S/o.Palanisamy, who is the second defendant herein. According to the plaintiffs, the Karae Gowder never executed a Will. In order to prove the execution of the Will, the defendants have chosen to examine the scribe DW3 and the official from the Sub Registrar's Office/DW4. 15. It is the specific case of the defendants that since both the attestors of the Will were died, the scribe alone was examined. Furthermore, the documents of the year 1987, which was a registered instrument, it may be taken into account as valid one. 16. It is well settled that mere registration of a Will would not attach to it a stamp of validity and it must still proved in terms of the legal mandates under the provisions of Section 63 (g) of the Indian Succession Act and Section 68 of the Indian Evidence Act [vide Leela Vs. Muruganantham ( 2025 INSC 10 )] . Section 68 of the , 1872 lays down the manner in which a Will has to be proved. 17. It is pertinent to mention that a scribe of a particular document cannot be treated as an attesting witness if he has simply written the same. But at the same time, if he has acted in dual capacity both as a scribe as well as an attestor, then his evidence can be looked into for the purpose of attestation. Though it was contended by the defendants that two attestors of the Will have been expired. But at the same time, if he has acted in dual capacity both as a scribe as well as an attestor, then his evidence can be looked into for the purpose of attestation. Though it was contended by the defendants that two attestors of the Will have been expired. In order to prove the above said facts, the defendant has not chosen to produce any documents. Though the defendants had taken a stand that two attestors of the will were expired, but nothing stated by the defendants as to when and where they died? Further, no legal heirs of attestors or identified persons who known the signature of the attestors were not at all examined by the defendants. 18. It is well settled that the burden of proof regarding the valid execution of Will is on the propounder alone. If any suspicious circumstances surrounding in the execution of Will, the same must be expelled by the propounder. Even though the alleged will is a registered one as per Section 69 of the Indian Evidence Act , the burden is on the propounder to prove the validity of the Will. It is relevant to refer the said Sections 68 and 69 of , which reads as follows: ''68. Proof of execution of document required by law to be attested.––If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 3[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] 69. Proof where no attesting witness found.––If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.'' 19. It is pertinent to mention that as per Section 68 of the Indian Evidence Act , the propounder must prove that the witnesses, who attested the suit will could not be found. It would have been sufficient to show that the said witness could not be traced in spite of diligent search. The nature of enquiry said to have been taken by the defendants is not clear. There is nothing on record to show that the dependents made proper enquiry. 20. It is pertinent to mention that even though the plea of the defendants is that both the attestors are not available, the Will can be proved by resorting the procedure laid down in Section 69 of the Indian Evidence Act . In this case, the defendants have not taken any steps to send any witness summons to the attestors as contemplated under Order XVI Rule 10 of the Code of Civil Procedure. The defendants failed to take steps to secure the attesting witnesses and no documentary evidence produced by the defendants regarding the death of the attestors. The defendants failed to establish the factum of alleged non-availability of the attesting witnesses. Without proving the Will in the manner of law, the defendants claiming their right over the Will does not sufficient to believe the document as a genuine Will of the testator. As mandated under Section 69 of the that atlease one of the attestor or if one of the persons who knows the signatures of the attestor has to be examined to prove that the signature was that of the attestor. DW3, who is working as an Assistant, in the Sub Registrar's Office, has chosen to produce the certified copy of the Will. DW4, who is the Scribe of the Ex.B1 Will, deposed that the Will prepared by her on the instructions given by Karae Gowder alone. Admittedly, the Will came into existence in the year 1987 wherein two attestors viz., Varuthapa Mudhaliar and P.R.Shanmugam where shown as witnesses in the said document, but they are not examined by the defendants. The evidence of DW3 and DW4 are not sufficient to prove the signatures of the attestors found in the Will as contemplated under 69 of the . 21. The evidence of DW3 and DW4 are not sufficient to prove the signatures of the attestors found in the Will as contemplated under 69 of the . 21. It is well settled that a "Will" has to be proved as required under law with regard to Section 63 of the Indian Succession Act and under the provisions of Section 68 of the Indian Evidence Act . Section 69 of the comes into the application where no attesting witness is found. It is an enabling provision for the propounder to prove the "Will" when there is no attesting witness found. This provision will be applicable in a case where the attesting witness is either dead or out of the jurisdiction of the Court or kept out of the way by the adverse party or cannot be traced out despite diligent search. Under Section 68 of the Act, the propounder is expected to call upon to examine at least one attesting witness in addition to lead evidence to explain the surrounding suspicious circumstances if any raised by the opposite party. However, under Section 69 of the Act the propounder is called upon to examine witness, who are able to prove the handwriting of at least one attesting witness and the handwriting of the testator and the burden of prove is then shifted to others, who denies the execution of "Will". 22. It is settled law that whether execution of Will is seriously disputed or not and the same has not been proved in terms of Section 63 (a) of the Indian Succession Act read with Section 68 of Evidence Act. It is the contention of the learned counsel appearing for the appellant submitted that the burden lies on the plaintiff to prove that the alleged Will is surrounded by suspicious circumstances, cannot be accepted, since the burden lies upon the propounder of the Will, has to remove the suspicious circumstances over the alleged Will. The rulings relied by the learned counsel for the appellant, are not supported to his case since the facts of the present case is diffent from those cases. In those cases, wherein the plea was taken that the alleged Will was created by fraud and coercion. The rulings relied by the learned counsel for the appellant, are not supported to his case since the facts of the present case is diffent from those cases. In those cases, wherein the plea was taken that the alleged Will was created by fraud and coercion. It is settled law that if both the attestors are dead, the propounder the Will can lead other evidence as contemplated under Section 69 of the Evidence Act and proceed to prove the Will. In the case on hand, the appellants/ defendants, have not taken any steps to prove Ex.B1 = Ex.X1 as mandated under Section 68 and 69 of the Indian Evidence Act . 23. The contention of the defendants is that the plaintiffs have pleaded that the testator of the Will, Karae Gowder had suffered from Cancer for more than three years before death and never in a physical and mental condition and he was under the care and custody of the 4 th plaintiff and therefore, the burden lies upon the plaintiffs to establish the above said facts. Admittedly, the said Karae Gowder died on 08.08.1988 and the date of execution of the Will is 29.06.1987 i.e. One year before the death of the said Karae Gowder. Under the said circumstances, it is the bounden duty of the defendants to prove that the said Karae Gowder was sound disposing state of mind at the time of execution of the Will. Though the Court below has not framed specific issue with regard to the proving of the Will in a manner known to law. Whereas before the trial Court, both the parties have sufficiently let in evidence and examined witnesses also to that effect. Both the parties have elaborately pleaded and adduced evidence with regard to the Will. In the light of the above discussion, this Court is of the view that there is no reason warranted to interfere with the impugned judgment and decree passed by the trial Court. The points are answered accordingly. 24. In the result, the Appeal Suit is dismissed. The judgment and decree dated 12.11.2018 made in O.S.No.94 of 2014 passed by the learned V Additional District Judge, Coimbatore is confirmed. No costs.