This Second Appeal challenges the dismissal of a partition suit and an injunction suit due to failure to prove a Will despite defendants not disputing execution. The court upheld lower findings that Section 68 of the Indian Evidence Act mandates summoning an attesting witness.
Second Appeals dismissed; connected Civil Miscellaneous Petition closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.12.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.Nos.1420 of 1997 & 38 of 2006 &
C.M.P.No.15192 of 2018
S.A.Nos.1420 of 1997:
Ranga Pillai
...Appellants
Vs.
1.Mannar Pillai (Deceased)
2.Devaraj
3.Pachayammal
4.Govindammal
5.R.Jayaprakash (Minor) ...Respondents
(R5 brought on record as LR of the deceased R1 vide order of the Court dated 11.08.2014 made in C.M.P.Nos.500 to 502 of 2011 in S.A.No.1420 of 1997)
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Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree of the Principal District Judge, Chengalpattu, in A.S.No.3 of 1996 confirming the Judgement and Decree of the Sub Judge, Tiruvallur in O.S.No.44 of 1987.
For Appellant : Mr.M.R.Khabali For Respondents : Mr.G.S.Selvatharasu 2 & 5 For Respondent 6: Mrs.G.Sumitra For Respondents : Given up 3 & 4 For Respondent 1: Died S.A.Nos.38 of 2006: Ranga Pillai ...Appellants Vs. 1.Devaraj 2.Mannar Pillai (Deceased) 3.R.Jayaprakash (Minor) ...Respondents 2/20
(R3 brought on record as LR of the deceased R2 vide order of the Court dated 02.01.2012 made in C.M.P.Nos.545 to 547 of 2011 in S.A.No.38 of 2006)
Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.29 of 2003 dated 30.01.2004 by the Additional District Judge, Fast Tract Court No.V, Chengalpattu at Thiruvallur confirming the Decree and Judgement passed in O.S.No.887 of 1988 dated 25.07.2002 by District
Munsif Court, Tiruvallur.
For Appellant : Mr.M.R.Khabali For Respondents : Mr.G.S.Selvatharasu 1 & 3 For Respondent 2: Died
JUDGMENT
The two appeals are filed with reference to the very same
property. The plaintiff in O.S.No.44 of 1987, who is the defendant in O.S.No.887 of 1988 is the appellant before this Court.
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Court, Tiruvallur for partition of his half share in the suit schedule property and for recovery of the share of the income. The suit O.S.No.887 of 1988 on the other hand has been filed by the defendants 1, 2 and 4 in O.S.No.44 of 1987 against the plaintiff in O.S.No.44 of 1987, for bare injunction restraining the defendant, his men, servants from interfering or trespassing into the suit property, cutting and removing the trees and thatched hut thereon. The property which is the subject matter of this suit is the 5th item of the property in the suit O.S.No.44 of 1987. The parties are referred to in the same ranking as before the suit O.S.No.44 of 1987 for ease of understanding.
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belonged to one Desammal, who is the mother of the 1st defendant and sister of the deceased 3rd defendant, Chenchu Pillai. The 2nd defendant is the husband of the 1st defendant.
of the property had executed a Will dated 01.06.1974 bequeathing the suit property equally on her daughter, the 1st defendant and her brother the 3rd defendant. On her death, both of them became owners of the suit property and were in enjoyment of the same as co-owners.
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entire property in favour of the 3rd defendant. The defendants would further submit that even if the Will is genuine, the same would not bind them as the Will itself is invalid in law. Further, there was no necessity for Desammal to execute the Will especially when the 1st defendant would automatically inherit the entire property from her mother on the demise of her mother. It was also their contention that these properties were not inherited by the 3rd defendant since he is only the maternal uncle of the 1st defendant. Therefore, the sale in favour of the plaintiff would not convey any right, title or interest upon the plaintiff. The defendants would further submit that it is only the 1st defendant who is in exclusive possession of the suit property and the claim of adverse possession put forward by the plaintiff was absolutely false. They would also contend that the suit is barred by limitation and therefore sought for the dismissal.
that he had sold his share to the plaintiff under two registered sale 7/20
deeds dated 22.12.1986 and 04.03.1987 and that he had every right to execute the sale.
1, 2 and 4 for bare injunction in respect of the 5th item of the suit property in O.S.No.44 of 1987. Though in the suit O.S.No.44 of 1987, the defendants 1, 2 and 4 had taken a plea that the property was not exclusive property of Desammal but the property of her husband, in the suit O.S.No.887 of 1988 they had taken a stand that the suit property belonged to Desammal, the mother of the 1st defendant and on her death, the 1st defendant had inherited the same and she had sold southern half share to the 4th defendant (2nd plaintiff in the suit O.S.No.887 of 1988) and put him in possession of the same.
share together with an hut and one Tamarind tree, one margosa tree and three palmyrah trees, whereas the 4th defendant was enjoying southern
share with his thatched house therein. The defendants 1 and 2 were
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paying their house tax receipts separately.
was threatening to cut trees and trespass into the suit property on the basis of the sale deed said to have been executed by one Chenchu Pillai, the maternal uncle of the 1st defendant in favour of the plaintiff. They would submit that the plaintiff has already filed a suit in O.S.No.44 of 1987 and the same is pending, where the right of the plaintiff is yet to be fructified. They therefore sought for an injunction restraining the plaintiff from interfering or trespassing into the suit property.
i. Whether the suit properties are the self acquired properties of Desammal?
ii. Whether the Will dated 01.06.1974 is true and
genuine document?
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iii. Whether the sale deed dated dated 22.12.1986
and 06.03.1987 are true and valid? If so will they bind the
1st defendant?
iv. Whether the 1st defendant had prescribed title to
the suit properties by adverse possession?
v. Whether the plaintiff is entitled to half share in the suit properties?
vi. To what other relief the plaintiff is entitled to?
Tiruvallur had framed the following issues:
i. Whether the 1st defendant is the absolute owner of
the suit property?
ii. Whether the 1st and 2nd plaintiffs are enjoying the
usufructs of the trees standing in the suit property?
iii. Whether the Will dated 01.06.1974 executed by
Desammal is true and valid?
iv. Whether the sale deed dated 04.03.1987 executed
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by Chenchu Pillai is true and valid and binding upon the
plaintiffs?
v. Whether the suit is barred by res judicata?
vi. Whether the plaintiffs are entitled to permanent
injunction as prayed for?
Vii. What other relief the plaintiffs are entitled to?
the suits would rest upon the question as to whether the Will executed by the said Desammal is a valid one. In the suit O.S.No.44 of 1987 the learned Subordinate Judge, Tiruvallur had examined the plaintiff as P.W.1 and one Sivagana Sambandam as P.W.2. The plaintiff had also
marked Ex.A.1 to Ex.A.12. On the side of the defendants, the 2nd defendant had examined himself as D.W.1, the 4th defendant as D.W.2 and one Gangadaran as D.W.3 and Ex.B.1 to Ex.B.24 were marked.
examined himself as P.W.1, the 4th defendant as P.W.2 and one
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Kothandan as P.W.3 and marked Ex.A.1 to Ex.A.7. On the other side, the plaintiff had examined himself as D.W.1 and Sivagnana Sambadam as D.W.2 and marked Ex.B.1 and Ex.B.2. The Advocate Commissioner's report and sketch had been marked as Court exhibits, Ex.C.1 and Ex.C.2.
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file of the Additional District Judge, Fast Tract Court V, Chengalpattu at Tiruvallur.
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the 4th defendant by virtue of the sale in his favour on 12.12.1986.
of law have been raised:
i. Whether the Courts are right in holding that the
Will has not been proved though the Will is registered and the same is not disputed by the defendants?
ii. Whether the Courts below are right in holding that the sale deed in favour of the plaintiff is not supported by consideration despite the admission of the 3rd defendant that the consideration had been paid?
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in S.A.No.38 of 2006 are as follows:
i. Whether the plaintiffs are entitled to get a decree
for permanent injunction against the co-owner in joint possession when the Second Appeal is pending before the High Court, subject matter of the suit for partition relating to the suit property and other properties of the same parties?
ii. Whether the permanent injunction can be granted
against a co-owner in joint possession in order to made
him to deprive his legal rights over his property?
the original owner Desammal has executed the Will which has been marked as Ex.A.3 in the suit O.S.No.44 of 1987 and Ex.B.1 in the suit
O.S.No.887 of 1988. Admittedly, the plaintiff has not examined the
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attesting witness. It is the case of the plaintiff that the attesting witness need not be examined since the defendants have admitted the execution of the Will. This contention has to necessarily fail in the light of the categoric statement of defendants 1, 2 and 4 in their written statement that the Will dated 01.06.1974 has not been executed by Desammal and even assuming that it is executed, the Will was invalid since Desammal did not have any right to execute the Will.
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through Legal Representatives Vs. Lajesh Saxena (Dead) by Legal Representatives and another , has observed as follows:
“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 and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.”
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this Court in the Judgement reported in 2022 (2) LW 393 – Malliga Vs. P.Kumaran, where the learned Judge had raised a question for consideration as to whether the proof under Section 68 could be dispensed with if the execution of the Will has been admitted by the defendant. After referring to the Judgement of the Division Bench of the Kerala High Court reported in AIR 1990 226 - Thayyullathil Kunhikannan and others Vs. Thayyullathil Kalliani and others and the Judgement of Ramesh Verma cited supra, the learned Judge observed that the examination of the attesting witness cannot be dispensed with as Section 68 of the Evidence Act is mandatory for proving the Will.
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costs.
12.12.2022
Index : Yes/No Internet : Yes/No kan
To
1.The Principal District Judge, Chengalpattu 2.The Sub Judge, Tiruvallur
3.The Additional District Judge, Fast Tract Court No.V, Chengalpattu at Thiruvallur
4.The District Munsif Court, Tiruvallur.
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P.T. ASHA, J,
kan
S.A.Nos.1420 of 1997 & 38 of 2006
12.12.2022
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2 issues framed by the court
Whether the testator duly executed the Will as required by law when the attesting witness was not examined in evidence.
Whether the sale of the property by the testator's daughter was valid in view of the failure to prove the alleged Will.
Colour shows how this judgement treated each authority
Ranga Pillai
Mannar Pillai
Devaraj
Chenchu Pillai
Pachayammal
Govindammal
P.T. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
