In this second appeal challenging a decree dismissing a partition suit, the High Court upheld the lower courts' finding that the Will was validly executed. The Court rejected allegations of suspicious circumstances, declaring the appeal failed and dismissing it.
The second appeal is dismissed with no costs. Connected miscellaneous petitions, if any, are 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.
S.A.No.1617 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 24.06.2024
PRONOUNCED ON : 25.07.2024
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
S.A.No.1617 of 2011
G. Jadeshwari ... Appellant Vs. 1. P. Revathi 2. T. Rameshbabu 3. B. Vijayalakshmi ... Respondents
Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 28th September 2010, passed by the Additional District Judge, Fast Track Court No.2, Salem in A.S.No.37 of 2010 upholding the judgment and decree dated 25.02.2010 passed by the Principal Sub-Judge, Salem in O.S.No.77 of 2008.
For Appellant : Mr. S. Ramesh For respondents : Mr. P. Jagadesan, for R2
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JUDGMENT
Challenge in this second appeal is made to the Judgement and Decree dated 28.09.2010 passed by the learned Additional District Judge, Fast Track Court No.2, Salem in A.S.No.37 of 2010, confirming the Judgment and Decree dated 25.02.2010 passed by the learned Principal Sub Judge, Principal Sub Court, Salem.in O.S.No.77 of 2008 .
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are jointly possessing and enjoying the suit property and hence, they are having
right of 1/4 equal share in the suit property. When the plaintiff demanded for partition, the 2nd defendant with the help of other defendants trying to sell the property. Hence, the suit.
1. Whether the plaintiff is entitled for 1/4 share in the suit property ?
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8 . Before the Trial Court, in support of the plaintiff's case, the plaintiff
examined herself as PW1 and 2 documents were marked as Ex.A.1 & Ex.A.2. On the side of the defendants, the second defendant examined himself as DW1 and one Savarimuthu, who signed as witness in the Will was examined as DW2 and 12 documents were marked as Ex.B.1 to Ex.B12.
the respective parties and the submissions made, the Trial Court, by its judgment and decree dated 25.02.2010, dismissed the suit. Aggrieved over the same, the plaintiff has preferred the First Appeal in A.S.No.37 of 2010 before the Additional District Judge, Fast Track Court No.2, Salem. The First Appellate Court, after considering the entire materials, concurred with the findings of the Trial Court, dismissed the appeal by a judgment and decree dated 28.09.2010. Now, challenging the same, the present Second Appeal has been filed.
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question of law:
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authority is right in dealing with appeal without formulating specific issues as contemplated under Order 41 Rule 25 ?
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grounds of appeal and thus pleaded to allow the second appeal.
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carefully.
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Ex.B.12 and the same is a registered one. To prove the Will, one Savarimuthu, who is the attestor of the Will, was examined as DW2. On perusal of the Will, it is noticed that it was executed on 04.11.1987 and registered on 09.11.1987. In that Will, life estate enjoyment was given to her husband. However, it is noticed that at the time of execution of the Will, the 2nd defendant, the beneficiary was minor. DW2, who is one of the attestor in the Will, deposed that Saraswathi Ammal had signed in the Will at every page and he had seen her signing and then, he signed in the Will followed by one Varadan. Scribe Ramalingam signed in the Will and Saraswathi Ammal had also seen the witnesses in the Will. Thereafter, the Will was registered and during the cross examination also he clearly deposed that Saraswathi Ammal had executed the Will in a sound disposing state of mind. He had also deposed that Saraswathi Ammal was suffering from Laccuvan, and her husband Thirumalai and her son Ramesh Babu,2nd defendant accompanied her for presenting the Will for Registration at the Sub Registrar office .
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disposing state of mind. There is no suspicious circumstances surrounded the Will and there is no reason to suspect that Saraswathi Ammal was not able to make and signed in the Will. The argument of the learned counsel for the appellant, that the Saraswathi Ammal not provided any share in the property to other children, is not creating a serious doubt. The second defendant/beneficiary was only minor at the time of execution of Ex.B.12 Will and there is no chance of influencing his mother to execute the Will. At the time of execution of Will, her husband i.e., father of the plaintiff was alive and Saraswathi Ammal given life estate to him and only after his death, the second defendant has got the absolute right in the property. In the Will, Saraswathi Ammal clearly instructed her husband to conduct the marriage of her two daughters. The plaintiff (P.W.1) during the evidence and pleadings stated about the ignorance of the existence of the Will. From the evidence, it is noticed that the plaintiff was staying with her parents upto 1992, and when her mother died in the year 1994, she was married. It is clear from her evidence that the Will, Ex.B.12 was executed before her marriage while she was residing with her parents. Therefore, her ignorance about the Will cannot be accepted. The second defendant constructed a house in the suit property in the year 2006. The second defendant examined himself as DW1. In his evidence, he has deposed about the Execution of the Will, which came into force after the death
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of his mother and father and also deposed that now he is in possession and enjoyment of the suit property. To prove the same, he has produced the property tax receipts, electricity receipts, which were marked as Ex.B.2 to Ex.B.9. The Trial Court and the First Appellate Court, on over all analysis of the evidence, found that Ex.B.12 Will is a genuine one and it was clearly proved by the defendants. After the death of Saraswathi Ammal and her husband Tthirumalai Chettiar Ex.B.12 has come into force and the suit property is now absolutely enjoyed by the second defendant. Therefore, the findings of the Trial Court as well as the First Appellate Court are only based on the evidence produced by the parties and no evidence is misconceived. There is no suspicious circumstances surrounded by the Will. The findings of the Courts below are not perverse or against law and there is no ground for interference. There is no merit in the Second Appeal. No substantial question of law involved in this case ad the second appeal is not maintainable.
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against the plaintiff.
Index : Yes / No Internet : Yes / No 25.07.2024 mrp
To
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V.SIVAGNANAM, J.
mrp
Pre-Delivery Judgment made in S.A.No.1617 of 2011
25.07.2024
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2 issues framed by the court
Whether the Courts below were right in dismissing the suit based on the validity of the Will despite alleged suspicious circumstances?
Whether the second appeal is maintainable as no substantial question of law is involved?
1 provisions across 1 enactments
G. Jadeshwari
P. Revathi
T. Rameshbabu
B. Vijayalakshmi
V.Sivagnanam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
