Dismissed

K.Bakthavachalam(Died) v. Ambiga

Madras HC30 Jan 2024SA/477/2021

Case brief

AI extract

What is this about?

Appears on second appeal regarding declaration of title to property. The High Court dismissed the appeal, upholding lower courts' rejection of the plaintiffs' will due to lack of proper attesting witnesses and holding that defendants were correct legal heirs.

What did the court decide?

Second appeal dismissed. Lower court judgment and decree of declaration of title upheld. No order as to costs.

K.Bakthavachalam(Died) Vs Ambiga — Succession and Inheritance | Madras HC (2024)

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S.A.No.477 of 2021

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 30.01.2024

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CORAM

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THE HONOURABLE Ms. JUSTICE P.T. ASHA

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S.A.No.477 of 2021

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and

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C.M.P.No.5497 of 2021

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K.Bakthavachalam(Died)

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S.Kalimuthu 2. Saravana Kumar 3. Murugan ... Appellants

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1. Ambiga 2. Madheswaran

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Saravanan 4. Manimegalai 5. Ravichandran ... Respondents

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PRAYER: Second Appeal filed under Section 100 of C.P.C. to set aside the judgment and decree dated 13.11.2019 in A.S.No.50 of 2017 passed by the learned Principal Subordinate Judge, Krishnagiri, confirming the judgment and decree of O.S.No.108 of 2007 dated 27.11.2013 passed by the learned District Munsif, Krishnagiri.

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For appellant : Mr.C.Samivel For R2 to R4 : Mr.C.Jagadish

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https://www.mhc.tn.gov.in/judis

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S.A.No.477 of 2021

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JUDGMENT

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The plaintiffs who have been unsuccessful before the Courts below, are the appellants herein and the facts are briefly set out hereinbelow and the parties are referred to in the same ranking as before the Trial Court.

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FACTS OF THE CASE:

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The plaintiffs had filed the suit in O.S.No.108 of 2007 on the file of the District Munsif Court, Krishnagiri, to declare the plaintiffs' title to the suit property and to restrain the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property.

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2.1. The plaintiffs would submit that the suit property belonged

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to one Sundarammal who had purchased it from her brother pursuant to a family partition under which the property was allotted to her brother, Krishanaswamy. The said Sundarammal died on 11.12.1986 and prior to this, she executed a will dated 16.01.1985 in favour of the 1^st

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S.A.No.477 of 2021

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plaintiff in a sound and disposable state of mind.

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2.2. The plaintiffs would submit that the defendants are the second wife and the children of Shanmugam, the husband of Sundarammal. The plaintiffs would further submit that the said Shanmugam had died in the year 1990 and the plaintiffs had become the owner of the property even in the year 1986 when Sundarammal passed away, therefore, Shanmugam would not inherit the property. Further, they would submit that the defendants had set up a false will. Since the defendants were attempting to trespass and disturb the plaintiff's possession, they have come forward with the suit for declaration. The second plaintiff is the son of the first plaintiff.

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2.3. The defendants had filed a common written statement in

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which they have contended that the will alleged to have been executed on 11.01.1985 is a fabricated document. The said Sundarammal had not executed any will during her lifetime and since she had died intestate,

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the property devolved on her husband viz., Shanmugam. Shanmugam

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S.A.No.477 of 2021

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had executed a registered will dated 17.11.1988 bequeathing the property on the defendants 2 and 3 who were minors at the time of the execution of the will. Therefore, they would submit that the plaintiffs

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have no right to the suit property. They prayed for the dismissal of the suit.

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TRIAL COURT:

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The Trial Court, on considering the pleadings, had framed the following issues:

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epU:gpf;fg;gl;Ls;sjh> mJ gpujpthjpfis fl;Lg;gLj;jf;Toajh>

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2/ jhth brhj;Jf;fs; thjpfSf;F cupikK:yk; kw;Wk; mDgtk; cs;sjh>

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3/ 17/11/1988?y; Vw;gl;ljhf brhy;Yk; capy; Vw;Wf;bfhs;sToa cz;ikahd Mtzkh>

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4/ thjpfs; nfhupathW tpsk;g[if kw;Wk; epue;ju cWj;Jf;fl;lis gupfhu';fs; fpilf;fj;jf;fjh>

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S.A.No.477 of 2021

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cs;shfpa[s;sjh>

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6/ ntW vd;d gupfhuk; thjpfSf;F fpilf;fj;jf;fJ>”

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The first plaintiff had examined himself as P.W.1 and marked Exs.A1 to A6, thereafter, he had passed away. The second defendant had examined himself as D.W.1 and one Alexander as D.W.2 and marked Exs.B1 to B13.

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The learned Judge had ultimately, dismissed the suit.

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LOWER APPELLATE COURT:

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The said judgment and decree was taken up on appeal by

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the plaintiffs in A.S.No.50 of 2017. Appellants 2 to 4 were impleaded during the appeal in A.S.No.50 of 2017 on the file of the Principal Sub

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Court, Krishnagiri.

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The learned Judge also dismissed the appeal and confirmed

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the judgment and decree of the Court below.

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S.A.No.477 of 2021

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Challenging this concurrent judgment and decree, the

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plaintiffs are before this Court. Notice was ordered to the respondents and it was only the respondents 2 to 4 who had entered appearance through counsel. The 1^st and 5^th respondents, though served, remained absent.

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Heard the learned counsel on either side and perused the materials available on record.

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DISCUSSION:

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The plaintiffs claim the right to the property only on the basis of the will dated 16.01.1985. The plaintiffs have not proved the will in the manner known to law. Except the evidence of the 1^st plaintiff as P.W.1, the attesting witness has not been examined. In the absence of proof as contemplated under Section 63(c) of the Indian Succession Act and Section 68 of the Evidence Act, both the Courts below have rightly rejected Ex.A1. Both the Courts below have also observed that

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the defendants have not proved Ex.B10 - will. However, since the

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plaintiffs have come forward to file this case on the strength of the will

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Ex.A1 and as the same has not been proved by them, the plaintiffs are not entitled to the relief claimed by them. Both the Courts below have rightly rejected the claim of the plaintiffs.

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That apart, the defendants are claiming right over the property as the legal heirs of the husband of the deceased Sundarammal. I see no reason to interfere with the well-considered judgment and decree of the Courts below since the appellants have not made out any substantial question of law.

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In fine, this second appeal stands dismissed. Consequently, the connected C.M.P. stands closed. However, there shall be no order as to costs.

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30.01.2024

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Index : Yes/No Speaking order/non-speaking order ssa

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S.A.No.477 of 2021

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The Principal Sub Judge, Krishnagiri.

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2.The District Munsif, Krishnagiri.

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3.The Section Officer, V.R.Section, High Court, Madras.

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S.A.No.477 of 2021

P.T.ASHA, J.,

ssa

S.A.No.477 of 2021

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30.01.2024

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K.Bakthavachalam(Died) v. Ambiga

Case brief

What is this about?

What did the court decide?

K.Bakthavachalam(Died) v. Ambiga

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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