Appeal by daughters against dismissal of their suit for partition claiming half share in their deceased father's properties. Trial court had upheld a Will bequeathing Items 1-18 to a grandson and settlement deeds favouring the daughters. The appellate court found attester evidence proved execution without suspicious circumstances and confirmed the trial court's findings.
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.
A.S.No.733 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :11.11.2024
CORAM :
THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI
A.S.No.733 of 2006
3.Rajam ... Appellants / Plaintiffs & 1st defendant
Versus
1.Murali
23.Dhanavel
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24.Sekar
25.Chinnaponnu 26.Krishnamurthi
... Respondents / Defendants 2 to 27
RR2 & RR3 declared as major vide Court order dated 15.09.2021 made in CMP.No.7364/2017 in A.S.No.733/2006. (PTAJ).
Respondents 6 to 26 are unnecessary parties, vide memo dated 14.11.2022 recorded and vide order of Court dated 03.08.2023 made in A.S.No.733/2006. (TVTSJ).
R2 and R3 declared as major on 15.09.2021 and mother discharged from guardianship, vide order of Court dated 03.08.2023 made in CMP.No.7365 / 2017 in A.S.No.733/2006 (TVTSJ).
Appeal Suit filed Under Section 96 of the Code of Civil Procedure, praying to set aside the Judgment and decree dated 15.12.2004 made in O.S.No.6 of 2004 on the file of the Additional District Court, Fast Tract-II, Cuddalore.
For A1 : Mr. G.K.Muthukumar for M/s.G.M.S. Law Association For A2 & A3 : Mr.E.Sampath Kumar For R2 & R3 : Mr. R.Yashod Vardhan, Senior counsel for Mr.R.Sunil Kumar For R1 : No appearance For R4 & R5 : Mr.T.Chandrasekaran, Special Government Pleader For R6 to R26 : Unnecessary parties.
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O R D E R
The appellants have filed this appeal to set aside the judgment and decree in O.S.No.6 of 2004, on the file of the Additional District Court, Fast Track-II, Cuddalore, dated 15.12.2004.
ranked in the suit.
to their father, Muthu Krishna Naidu, who inherited the properties from his
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father, Narayanasamy Nadar, and his grandmother, Rukmaniammal, with some properties being self-acquired by him. Thus, the entire property is deemed to be the self-acquired property of their father. He died intestate, leaving two daughters, one son, and his wife, each entitled to a one-fourth share. The second defendant (their brother) stated that their father executed a registered will on 04.03.1994 in favor of his grandson (D3), the son of D2.
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Krishna Naidu, through a will executed by his grandmother, Rukmaniammal, dated 26.01.1973, which was marked as Ex.B6. Some properties were purchased by Muthu Krishna Naidu, while others were derived from his father, Narayanasamy, as his self-acquired property. During his lifetime, their father executed a will with a sound mind in favor of D3 (minor Ananda Balaji) on 04.03.1994, and he passed away in 1996. Based on this will, D3 claimed absolute ownership of Item Nos.1 to 18. Additionally, Item Nos.19 to 21 do not belong to their family, Item Nos.22 to 24 are ancestral properties, and Item No.23 and Item No.3 of the suit properties are identical.
Moreover, there is a settlement deed executed by the plaintiffs' father on 10.03.1994, through which he allocated 25 cents to each daughter, as they had already received sufficient “sreethanas” (gifts) during their marriages. Therefore, according to the will, D3 claimed he is the absolute owner of the suit Item Nos.1 to 18.
evidence. On the plaintiffs' side, Ex.P.1 to Ex.P.8 were marked as exhibits, and the 1st plaintiff was examined as P.W.1. The attester of the will and settlement deed was examined as P.W.2. On the defendants' side, the mother
of the minor children was examined as D.W.1, and Ex.B.1 to Ex.B13 https://www.mhc.tn.gov.in/judis
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documents were adduced.
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establish that the properties included those acquired from his grandmother, Rukmaniammal. This evidence was considered by the learned trial judge, who ultimately found that, through the testimony of P.W.2, the execution of the Will was proven beyond reasonable doubt. The properties covered under the Will were shown to belong to the testator, Muthu Krishna Naidu, as selfacquired, not ancestral property. Thus, D3 is deemed the original owner of properties listed as Item Nos. 1 to 18, in which the plaintiffs have no share.
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"i. The lower court failed to consider that a prior suit notice was issued, and a reply notice was provided.
ii. The lower court overlooked the plaintiffs' contention in the notice that the suit properties were ancestral, while the defendants asserted that the properties were the separate property of Muthu Krishna.
iii. The lower court did not consider that the Will (Exhibit B1) is not genuine.
iv. The lower court failed to recognize that a registered Will is not presumed to be true by default.
v.The lower court failed to see that the burden of proof lies with the propounder of the Will.
vi. The lower court did not address the highly suspicious nature of the
Will.
vii. The lower court failed to see that disinheritance of heirs of equal standing raises strong suspicion regarding the Will's authenticity.
viii. The lower court did not consider that, within seven days of executing the Will (Exhibit B1), Muthukrishnan executed two settlement
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deeds (Exhibits B2 and B3), indicating that he had no intent to disinherit the plaintiffs.
ix. The lower court did not note that the attester of the Will was not examined, and therefore the attestation of Exhibit B1 was not proven.
x. The lower court erred in upholding the Will without addressing its unusual nature.
xi. The lower court incorrectly stated that the genuineness and validity of the Will executed by Rukmaniammal was not questioned.
xii. The lower court did not consider that no one connected with Exhibit B6 was examined.
xiii. The lower court did not note that the 2nd defendant, the son of the deceased, deliberately avoided testifying.
xiv. The lower court overlooked that the 1st defendant, Muthukrishnan's wife, was also disinherited.
xv. The lower court failed to recognize that the dismissal of O.S.No.40/2000 would bind the defendants in asserting the two Wills in the suit."
Based on the above grounds, the appellants pray to set aside the findings of the trial court.
that the suit properties were indeed the separate properties of the testator,
Muthu Krishna Naidu. This was substantiated by the documents marked as
Exhibits B2 to B12, demonstrating that Muthu Krishna Naidu was the https://www.mhc.tn.gov.in/judis
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absolute owner of the suit properties and entitled to execute a Will in favor
of the 2nd respondent / 3rd defendant. The Will was proven through the attestation of P.W.2, as well as the existence of a valid settlement deed in favor of the plaintiffs. Given this documentary and oral evidence, the learned trial judge rightly dismissed the plaintiffs' claims, and there is no need for intervention. Therefore, the respondents request that the appeal be dismissed for lack of merit.
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properties of Muthu Krishna Naidu. Upon his death, intestate, he held a 1/2 share, with each sibling entitled to a 1/4 share. As D2 was not amenable to an amicable partition, a suit for partition was filed. Prior to filing the suit, the plaintiffs issued a notice, to which D2 replied, stating that their father had executed a Will in favor of his grandson (D3) during his lifetime. Thus, the plaintiffs were not entitled to any share in the suit properties (Item Nos. 1 to 18).
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rightly held that the suit properties are separate properties of Muthu Krishna Naidu, entitling him to deal with them as he wishes since they are not ancestral joint properties.
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not granted any share, nor was any explanation given for this exclusion. Furthermore, the entire property was bequeathed to the grandson, without assigning reasons for excluding the daughters, i.e., the plaintiffs.
i. (2021) 14 Supreme Court Cases 500, in the case of Raj Kumari and others vs. Surinder Pal Sharma, in which stated as follows:
"16.
(4). Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a lending part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. that suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally received their due share in his estate were disinherited because the testator might have had his own reasons for
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excluding them. The presence of suspicious circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a Solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the Will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coersion, ect., in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
ii. (2010) 5 Supreme Court Cases 274, in the case of S.R.Srinivasa and others vs. S.Padmavathamma, in which stated as follows:
"60. The High Court ought to have taken great care to satisfy its judicial conscience that the execution of the Will was not surrounded by suspicious circumstances. the appellate court had pointed out so many suspicious circumstances which could not have been brushed aside as being conjectural. The findings were based on documentary evidence. It was necessary for defendant 1 to answer a number of pertinent questions relating to the execution of the Will. It was also necessary for the High Court to exercise care and caution to ensure that the propounder of the Will has removed all legitimate suspicion.
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64. In our opinion, the High Court failed to exercise proper care and caution by not thoroughly examining the evidence led by the party, especially when it was not in agreement with the reasons recorded by the first appellate Court."
iii. MANU/SC/0450/2020 , in the case of Kavita Kanwar vs. Pamela Mehta and others, in which stated as follows:
"35. In our view, though the High Court has rightly oberved that even if this third page is assumed to be existing, it does not remove the suspicious circumstances bu the High Court has stopped short of going a little further and has not noticed that volte-face of the Appellant regarding this third page tilts the preponderance of probabilities heavily, rather conclusively, against her. Noteworthy it is that the said third page compels us to examine several of the possibilities concerning other assets of the testatrix.
37.The discussion foregoing is sufficient to find that thick cluouds of suspicious circumstances are hovering over the Will in question which have not been cleared; rather every suspicious circumstances is confounded by another and the curious case of the alleged third page of the Will effectively and completely demolishes the case of the appellant. Put differently, it is difficult to be satisfied that what is literally coming out of the document in question had been the last wish and desire of the testatrix as regards succession of her estate. On the contrary, we find enough and cogent reasons to affirm the material findings of the Trial Court and the High Court that it cannot be said that the testatrix executed and signed the document in question as her will after having understood the meaning, effect and purport of the contents."
iv. (1977) 1 Supreme Court Cases 369, in the case of Jaswant Kaur vs. Amrit Kaur and others, in which stated as follows:
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"Will - Burden of Proof -Extent of - Suspicious Circumstances - Held, evidence adduced must satisfy the Courts conscience - Extent of burden of proof on the propounder explained - Tests laid down in Iyengar's case affirmed - On facts, held, will not duly proved - Indian Succession Act, 1925, Section 63".
" Whether the Will is surrounded by suspicious circumstances as alleged by the appellants/plaintiffs?"
worked with Muthu Krishna Naidu at Vadalur Ceramic Company and knew
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the family’s affairs. According to his testimony, during his lifetime, Muthu Krishna arranged his daughter's marriage in a grand manner and provided sufficient property for her to live in her husband's house. D.W.2 also attested to signing three documents for the Muthu Krishna family: the Will and two settlement deeds. He testified that the Will was dictated by Muthu Krishnan, drafted by writer Elangovan, typed by Bharathi, and duly signed by all parties, including the testator in a sound state of mind. D.W.2 also identified the testator's thumb impression.
did not bequeath any property to his wife or his son, Murali. The first
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defendant, being the wife of the testator, raised no objections, nor did she enter the witness box. Her silence implies her lack of objection to her husband's decision to execute the Will in favor of D3.
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state of mind. The properties covered under Ex.B1 Will are listed as suit properties, which, according to Ex.B1, belong to D3 as the beneficiary. Consequently, the plaintiffs have no right to claim a share in the B-Schedule properties, accordingly issue No: 1 and 2 answered.
the findings of the learned trial judge are confirmed. No costs.
11.11.2024
Index : Yes/No Speaking/Non Speaking order Neutral Citation:Yes/No
rri
To
1.The Additional District Judge, Fast Tract-II, Cuddalore.
2.The Section Officer,
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VR-Section, High Court of Madras.
T.V.THAMILSELVI, J.
rri
A.S.No.733 of 2006
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11.11.2024
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2 issues framed by the court
Were the suit properties the separate properties of Muthu Krishna Naidu rather than ancestral or joint family property?
Was the Will allegedly executed by Muthu Krishna Naidu on 04.03.1994 in favour of his grandson authentic and valid, or executed under suspicious circumstances?
Colour shows how this judgement treated each authority
Raj Kumari and others vs. Surinder Pal SharmaReferred¶19
(2021) 14 Supreme Court Cases 500
S.R.Srinivasa and others vs. S.PadmavathammaReferred¶19
(2010) 5 Supreme Court Cases 274
Kavita Kanwar vs. Pamela Mehta and othersReferred¶19
MANU/SC/0450/2020
Jaswant Kaur vs. Amrit Kaur and othersReferred¶19
(1977) 1 Supreme Court Cases 369
2 provisions across 2 enactments
Prema
Uma
Rajam
Murali
Ananda Balaji
T.V. Thamilselvi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
