Panneer Selvam M Vs M Shanmugam

SMT.INDRANI M W/O VEMANNA D/O LATE MUNISWAMY R/O NO.06, SECOND MAIN ROAD P & T LAYOUT, ANANDAPURA EXTENSION T.C.PALYA MAIN ROAD K.R.PURAM BENGALURU-600036

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SMT.JAYANTHI M W/O GANESAN D/O LATE MUNISWAMY AGED ABOUT 45 YEARS R/O: DR.NO.63, SADHUSETTY NAGAR THAZAIYATHAM VILLAGE GUDIYATHAM POST-632602

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NC: 2026:KHC:4666 RFA No. 1666 of 2025

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VELLORE DISTRICT TAMILNADU STATE

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…APPELLANTS

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(BY SRI. MANJUNATHA L S, ADVOCATE)

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AND:

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M.SHANMUGAM S/O LATE MUNISWAMY AGED ABOUT 67 YEARS R/O: E-104, SECOND MAIN RAMACHANDRAPURAM SRIRAMAPURAM POST BENGALURU-560 021

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M.VIJAY KUMAR S/O LATE MUNISWAMY AGED ABOUT 58 YEARS R/O DR.NO.3A CHIPPAI MUNISWAMY STREET GOPALAPURAM GUDIYATHAM TALUK & POST-632602 VELLORE DISTRICT TAMILNADU STATE

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…RESPONDENTS

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(BY SRI.N.R.RAVIKUMAR, ADVOCATE FOR C/R.1)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 8.04.2025 PASSED IN O.S.NO.266/2021 ON THE FILE OF LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH NO.59), DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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Though this appeal is listed in admission, with

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the consent of the learned counsels on record, this will be

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heard on merits. The Trial Court Records are also received.

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The captioned appeal is filed by defendant No.1. His two sisters, who are also sisters of the plaintiff, have joined him as appellants No.2 and 3 in the present appeal. The appellants are assailing the judgment and decree dated 08.04.2025 passed in O.S.No.266/2021 on the file of the LVIII Additional City Civil and Sessions Judge, Bengaluru. Under the impugned judgment, the Trial Court, having held that the plaintiff has proved the due execution and validity of the registered Will, has decreed the suit by granting a 1/3^rd share to the plaintiff in terms of the testamentary arrangement made by the testator.

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For the sake of convenience and to avoid

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confusion, the parties are referred to as per their rank before the Trial Court.

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The facts leading to the filing of the suit, in brief, are as follows:-

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The plaintiff, M.Shanmugam, who is the eldest son of late K.Muniswamy, instituted the suit in O.S.No.266/2021 asserting that his father, K.Muniswamy, was the absolute owner of the suit schedule property. It is the specific case of the plaintiff that the testator, during his lifetime, executed a registered Will dated 24.06.2017 bequeathing the suit schedule property equally in favour of his three sons, namely the plaintiff and defendant Nos.1 and 2. On the strength of the said testamentary disposition, the plaintiff sought partition and separate possession of his 1/3^rd share in the suit schedule property.

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The suit was instituted on the assertion that despite the clear arrangement made by the testator under

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the registered Will, granting equal shares to the three sons, the defendants, in spite of issuance of notice, failed to come forward to effect partition by metes and bounds, thereby necessitating the institution of the present suit.

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Upon service of summons, defendant No.2 entered appearance but did not contest the suit and was accordingly placed ex-parte . Defendant No.1 entered appearance and filed a written statement seriously disputing the Will relied upon by the plaintiff. It was contended by defendant No.1 that the testator, K. Muniswamy, was forcibly taken to the Sub-Registrar’s Office and that the Will was got registered by exercising coercion and undue influence, without the free consent of the testator. On these grounds, defendant No.1 sought dismissal of the suit.

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Based on the rival pleadings, the Trial Court framed appropriate issues and directed the parties to lead evidence. In support of his claim, the plaintiff produced the registered Will, which was marked as Ex.P.1. The

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plaintiff examined his wife as PW.1 and examined one of

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the attesting witnesses to the Will, M. Murugan, as PW.2. Though defendant No.1 cross-examined PW.1 and PW.2 at length, he did not choose to adduce any rebuttal evidence. Upon appreciation of the oral and documentary evidence, the Trial Court answered Issue No.2 in the affirmative, holding that the Will dated 24.06.2017 stood duly proved in accordance with law. Consequently, the suit was decreed granting a 1/3^rd share to the plaintiff.

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Learned counsel appearing for defendant No.1, reiterating the grounds urged in the appeal memorandum, would contend that the suit schedule property is ancestral in nature and, therefore, the present suit is bad for noninclusion of all the legal heirs of late K. Muniswamy. He would submit that the testator was survived by three sons,

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the legal heirs of one predeceased son, namely M. Ravikumar, and two daughters, and hence the suit for partition instituted by the plaintiff without impleading all necessary parties is not maintainable. He would further

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contend that the Will relied upon by the plaintiff is a concocted document and that the plaintiff has failed to dispel the suspicious circumstances surrounding its execution. It is his submission that the findings recorded by the Trial Court while answering Issue No.2 are based on a misreading of the evidence and therefore warrant interference by this Court.

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Placing reliance on paragraph No.5 of the appeal memorandum, learned counsel would further submit that appellants No.2 and 3, who are the daughters of late K. Muniswamy and were not parties to the suit, have now approached this Court seeking leave to prosecute the appeal, asserting that the suit schedule property is ancestral joint family property. It is contended that their exclusion from the suit renders the decree null and void and, therefore, the appeal deserves to be heard on merits after granting permission to appellants No.2 and 3 to prosecute the appeal along with defendant No.1.

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Per-contra , learned counsel appearing for the

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plaintiff would submit that under the registered Will, only the three sons are beneficiaries and, therefore, appellants No.2 and 3, who are the daughters of the testator, are

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neither beneficiaries under the Will nor necessary parties to the suit. He would contend that appellants No.2 and 3 are being set up at the instance of defendant No.1, and that their impleadment at the appellate stage is a calculated attempt to defeat the legitimate rights of the plaintiff. He would further submit that defendant No.1, in paragraph No.6 of the written statement, has categorically admitted that the suit schedule property was the self-acquired property of the testator, K.Muniswamy. In view of such clear admissions in the pleadings, the appellants cannot now be permitted to take a contrary stand at the appellate stage, as admissions in pleadings

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stand on a higher pedestal and are binding on the party making them.

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Having heard the learned counsel appearing for

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the parties and having perused the records, the following points arise for consideration:

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i) Whether the finding of the Trial Court that the suit schedule property is the selfacquired property of the testator, K.Muniswamy, suffers from perversity or calls for interference?

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ii) Whether the finding recorded by the Trial Court holding that the plaintiff has proved the due execution and validity of the registered Will dated 24.06.2017 suffers from perversity and warrants interference by this Court?

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iii) Whether appellants No.2 and 3, being the daughters of the testator, are entitled to prosecute the present appeal along with defendant No.1?

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iv) Whether defendant No.1 has made out a case to demonstrate that the suit filed by the plaintiff seeking partition is bad for non-joinder of necessary parties, particularly appellants No.2 and 3 and the

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widow and children of the predeceased son, M. Ravikumar?

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v) What order?

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Finding on point No.(i) :-

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Though in the present appeal defendant No.1,

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along with his two sisters, has now sought to raise a defence that the suit schedule property was ancestral in nature and that the testator, late K. Muniswamy, had purchased the said property by selling ancestral lands situated in the State of Tamil Nadu, this Court finds it necessary to examine the pleadings taken by defendant No.1 before the Trial Court. It is a settled principle of law that parties are bound by their pleadings and that admissions made therein constitute substantive evidence, which cannot be lightly ignored or permitted to be resiled from at the appellate stage.

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In this background, this Court deems it appropriate to advert to the written statement filed by defendant No.1 in the suit. Paragraph No.6 of the written

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statement assumes considerable significance, as it directly

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pertains to the nature and character of the suit schedule

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property and the source of its acquisition. The contents of the said paragraph, which have a bearing on the present

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controversy, are therefore extracted hereinbelow for ready reference:

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"06. The defendant submits that the suit schedule property is the self acquired property of the father of the plaintiff and defendants. Both parties have the equal rights over the suit schedule property. The plaintiff has suppressed the fact that the plaintiff father has 5 issues 2 female children and 3 male children. The plaintiff has not made them as party to the present suit. Hence the case is liable to be dismissed for nonjoinder of parties."

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On a careful reading of the extracted portion of

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the written statement, it becomes manifest that the first defendant has, in unequivocal terms, admitted that the suit schedule property was the self-acquired property of

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the father of the plaintiff and defendants, namely late K.Muniswamy. Such an admission, made consciously in

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pleadings before the Trial Court, is substantive in nature and binds the party making it. Having taken a clear and categorical stand at the trial stage, defendant No.1 cannot now be permitted to approbate and reprobate by retracting from the admission contained in paragraph No.6 of the written statement and by setting up a wholly inconsistent plea in the present appeal that the suit schedule property is joint family ancestral property.

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This Court also cannot lose sight of the conduct of defendant No.1 in setting up his two sisters at the appellate stage by joining them as appellants No.2 and 3, for the first time raising a plea that the daughters were necessary parties to the partition suit and that the suit is bad for non-joinder of necessary parties. In the light of the admitted pleadings acknowledging the self-acquired nature

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of the property, and having regard to the fact that appellants No.2 and 3 have joined defendant No.1 only at

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the appellate stage, it is evident that a feeble and misconceived attempt is made to non-suit the plaintiff on

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the ground of non-joinder, which is clearly an

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afterthought.

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Once it is admitted that the property bequeathed under the Will is the self-acquired property of the testator, the daughters of the testator, who are not beneficiaries under the Will, do not acquire any right, title, or interest therein and are therefore not necessary parties to the suit for partition based on the testamentary disposition. Consequently, appellants No.2 and 3 are not entitled to prosecute the present appeal along with defendant No.1. Accordingly, Point No.(i) is answered in the "Negative" and against defendant No.1 and appellants No.2 and 3.

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Finding on Point No.(ii) :-

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It is trite that the burden to prove the due execution of a Will lies on the propounder. In the present case, the plaintiff has discharged this burden by examining PW.2, who is one of the attesting witnesses to the registered Will. Through the testimony of PW.2, the

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plaintiff has successfully demonstrated that the testator, late K. Muniswamy, out of his own free will and volition, executed the testamentary instrument, thereby distributing his self-acquired property equally among his three sons, namely the plaintiff and defendant Nos.1 and 2.

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By examining one of the attesting witnesses, the plaintiff has complied with the mandatory statutory requirements under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. PW.2 has categorically deposed in his chief-examination that at the request of the testator, he was summoned and was present when the Will was drafted by the advocate, Nandakumar. At paragraph No.2 of his chief-examination, PW.2 has clearly stated that the Will was prepared strictly in accordance with the instructions given by the testator. He has further deposed that after drafting, the advocate read over and explained each and every clause of the Will to the testator. Upon being satisfied with the contents, the

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testator affixed his left thumb impression on the Will. PW.2

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has further stated that immediately thereafter, he attested the Will by subscribing his signature as an attesting witness.

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On a holistic reading of the deposition of PW.2, it is evident that the plaintiff has successfully discharged the initial burden cast upon him. Any alleged suspicious circumstances surrounding the Will stand sufficiently explained and dispelled by the clear, cogent, and consistent testimony of the attesting witness.

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Once the due execution of the Will is proved by examining an attesting witness, the onus necessarily shifts on to defendant No.1 to substantiate the allegations of coercion, undue influence, or lack of testamentary capacity. It is quite significant to note that though defendant No.1 is admittedly one of the beneficiaries under the registered Will and is entitled to a 1/3rd share in the estate of his father, he has nonetheless chosen to contest the suit by alleging that the testator was forcibly

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taken to the Sub-Registrar’s Office and was compelled to execute the Will. Strangely, despite raising such serious allegations, defendant No.1 has not stepped into the witness box nor has he led any evidence to substantiate the said plea.

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The other objection raised by defendant No.1 is with regard to alleged non-joinder of necessary parties on the premise that the daughters and the legal heirs of the predeceased son were not impleaded. In this context, this Court deems it appropriate to advert to paragraph No.4 of the written statement, which has a direct bearing on the shifting of burden and the failure of defendant No.1 to discharge the same, particularly after the plaintiff had examined an attesting witness as PW.2. Paragraph No.4 of the written statement is therefore extracted hereunder for ready reference:

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"4. IN RE-PARAGRAPH No.4:- The defendant denies that the father of the plaintiff and defendants has executed a registered will on 24.06.2017. The plaintiff with an intention to cheat the defendants has registered the will to suit his necessities. The plaintiff

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fraudulently without the knowledge of the defendant took away their father and without his consent got registered the will and filed the above suit."

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On a careful reading of paragraph No.4 of the written statement, the tenor of the stand taken therein leaves no manner of doubt that the first defendant has clearly admitted that the testator did, in fact, go to the Sub-Registrar’s Office. Once such an admission is made in pleadings, the foundational fact of the testator presenting himself before the Sub-Registrar stands admitted. Having taken such a stand, the burden squarely shifted on the first defendant to establish his further plea that the testator was under the control of the plaintiff and that he was forcibly taken to the Sub-Registrar’s Office and compelled, by exercise of coercion and undue influence, to execute the registered Will.

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When allegations of coercion and undue influence are pleaded, the law mandates that the party alleging such facts must step into the witness box and adduce cogent rebuttal evidence. In the present case, once the plaintiff

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discharged his initial burden by examining PW.2, an attesting witness to the Will, it was incumbent upon the first defendant to lead rebuttal evidence and discharge the onus that had shifted on him. However, the first defendant

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has chosen not to enter the witness box nor has he produced any independent evidence to substantiate the serious allegations levelled against the plaintiff.

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As noticed supra, the conduct of the first defendant is all the more inexplicable inasmuch as he is admittedly one of the beneficiaries under the registered Will and is entitled to a 1/3^rd share in the estate left behind by the testator. Despite being a beneficiary, he has strangely chosen to contest the suit. Having filed a written statement disputing the Will, it was obligatory on his part to enter the witness box and substantiate the allegations of coercion and undue influence. In the absence of any rebuttal evidence and in the absence of a serious challenge to the execution of the Will, this Court has no

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hesitation in holding that the plaintiff has satisfactorily proved the due execution of the Will.

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This Court has also meticulously examined the cross-examination of PW.2 conducted on behalf of the first defendant. A perusal of the cross-examination reveals that only a few casual and perfunctory questions were put to PW.2. There are no specific suggestions that the plaintiff had taken an active or dominant role in procuring the Will or that the testator was forcibly taken to the SubRegistrar’s Office. Equally, there is no serious challenge to the mental state or testamentary capacity of the testator at the time of execution of the Will. No material questions were put to PW.2 to create or even suggest suspicious circumstances surrounding the execution of the Will, as alleged in the written statement.

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In the light of these significant omissions and

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the absence of rebuttal evidence, this Court finds that the suspicious circumstances, if any, stand sufficiently dispelled by the evidence of PW.2. The finding recorded by

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the Trial Court holding that the due execution of the Will has been proved by the plaintiff does not suffer from perversity or illegality. Accordingly, Point No.(ii) is answered in the "Negative".

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Findings on Point Nos.(iii) and (iv):-

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The first defendant, who is admittedly one of the

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beneficiaries under the Will, has now sought to set up his two sisters to challenge the said will, who are arrayed as appellants Nos.2 and 3. This Court has already adverted to and examined the stand taken by the first defendant with regard to the nature of the suit schedule property while answering Point No.(i). As noticed earlier, in paragraph No.6 of the written statement, the first defendant has categorically admitted that the suit schedule property is the self-acquired property of the testator.

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However, in the present appeal, the first defendant, along with appellants Nos.2 and 3, has made an attempt to resile from the said admission and has come

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up with an entirely new case by contending, for the first time, that the suit schedule property is ancestral in nature and that the testator had sold ancestral lands situated at Chennai and purchased the suit schedule property out of the sale proceeds. These pleadings are in direct conflict with the categorical admissions contained in paragraph No.6 of the written statement filed before the Trial Court.

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Significantly, these new pleadings are not supported by any documentary evidence, nor has any application been filed seeking to amend the written statement to incorporate such a diametrically opposite plea. No application is also filed seeking to adduce additional evidence to substantiate the newly introduced case. Without amending the pleadings or producing any supporting material, bald assertions are sought to be introduced for the first time at the appellate stage, as reflected in paragraph No.6 of the appeal memorandum.

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This Court is therefore of the considered view that the joining of appellants Nos.2 and 3 at the appellate

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stage is not a bona fide exercise of legal rights, but a feeble attempt engineered at the instance of the first defendant to prolong the litigation and to prevent the present lis from attaining finality. The daughters have not independently established any locus to challenge the decree, particularly in view of the admitted position that the property bequeathed under the Will is the selfacquired property of the testator and that the Will itself stands proved.

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Once this Court has recorded a categorical finding that the suit schedule property is the self-acquired property of the testator and that the registered Will dated 24.06.2017 is duly proved and free from suspicious circumstances, the question of permitting appellants Nos.2 and 3 to prosecute the appeal does not arise. They have neither locus standi nor any enforceable right in respect of the suit schedule property.

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