Second appeal against reversal of dismissal of a partition suit. The propounder failed to dispel inherent suspicious circumstances surrounding execution of the Will, including disinheritance of unmarried daughters and contradictory attestor evidence. Appeal dismissed, affirming the plaintiff's share.
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SA.No.1239 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.04.2024
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.No.1239 of 2007 and MP.No.1 of 2007
Palani
... Appellant
... Respondents
Second Appeal is filed under Section 100 of the Civil Procedure Code against the judgment and decree of First Additional District Court, Krishnagiri dated 30.09.2005 in A.S.No.122 of 2003 reversing the judgment and decree of the Subordinate Court of Dharmapuri dated 26.06.2003 in O.S.No.116 of 1998.
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For Appellants : Mr.Ma.Pa.Thangavel for Mr.M.Lokesh For Respondents : Mr.M.Muthusamy Government Advocate for R6 & R7 R1 to R4 -Served. No Appearance R5-Not ready in notice *****
J U D G M E N T
The first defendant is the appellant herein. The plaintiff is figured as
first respondent herein, and the defendants 2 to 7 are arrayed as other respondents.
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was not in sound disposing state of mind and he was not in a position to understand what was happening around him. By taking advantage of such position, the first defendant had fabricated the Will. Therefore, it is the contention of the plaintiff that such Will, will not bind upon the plaintiff. Hence, the plaintiff has come forward with a suit for partition.
and one more witness was examined as PW2, who was the neighbour. On
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behalf of the defendants, the first defendant himself was examined as DW1 and the attestor of the Will was examined as DW2. On behalf of the plaintiff, as many as 9 documents have been marked Exs.A1 to A9 and on behalf of the defendants, 33 documents were marked as Exs.B1 to B33.
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“(i) Whether the lower appellate Court is correct in giving findings contrary to the evidence on record regarding the execution of the Will executed by Veera Gounder?
(ii) When the lower appellate Court failed to frame points for consideration in accordance with the mandatory provisions of Order 41 Rule 31 CPC whether the judgment rendered by it, is sustainable in law?”
The learned counsel also invited the attention of this Court about the evidence
of DW2, where DW2 has spoken about the due compliance of Section 63(c)
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of The Indian Succession Act. It is also contended by the learned counsel for the appellant that the judgment of the First Appellate Court is not in accordance with Order 41 Rule 31 of CPC. Therefore, for all those above reasons, the learned counsel prayed to interfere with the order of the First Appellate Court.
SA.No.1239 of 2007
SA.No.1239 of 2007
Will. Apart from the above three grounds, there is also a wild contradiction between the evidence of DW1 an DW2. Wherein DW1 says all the attestors have signed in front of the Registrar, whereas DW2 says they have not signed before the Registrar.
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allegedly arranged by him to the plaintiff. Another inherent suspicious circumstances, which was projected by the plaintiff in his pleadings is that, the testator was not in sound disposing state of mind at the time of execution of the Will and his eye sight was also very poor. But to contradict such material pleading, the first defendant did not examine any doctor or any independent witness to show that the testator was in sound disposing state of mind.
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Will. He has categorically stated that at the time of the attestation, all the attestors have signed in front of the Registrar. Whereas, DW2, who is the attestor had spoken differently that he has attested the Will only outside of the Registrar's Office. All those things would indubitably point that there are inherent, natural and reasonable suspicious circumstances embedded over the execution of the Will-Ex.B1.
SA.No.1239 of 2007
question of law are answered in favour of the respondents.
order as to costs. Consequently, connected Miscellaneous Petition is closed.
16.04.2024
kmi
Index : Yes
Speaking Order
Neutral Citation Case: Yes
To
SA.No.1239 of 2007
SA.No.1239 of 2007
C.KUMARAPPAN, J
kmi
S.A.No.1239 of 2007
16.04.2024
3 issues framed by the court
Whether the first appellate court erred in holding that the Will dated 17.05.1993 was not proved?
Whether the first defendant discharged the onus of proving the Will and dispelling suspicious circumstances surrounding its execution?
Whether non-framing of points for determination under Order 41 Rule 31 CPC vitiated the first appellate court's judgment?
3 provisions across 2 enactments
Palani
Saraswathi
Rathinammal
Parvathi
Radha
Vijayalakshmi
C.Kumarappan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
