Annappattu and Chinnaiyan vs Muthusamy and Kannusamy

V. Periya Karuppiah, J.

S.A. No. 24 of 2004:

This Appeal is directed against the judgment and decree passed by the 1st Appellate Court in A.S. No. 255 of 2002 dated 30.6.2003 disposed

along with A.S. No. 256 of 2002 in reversing the judgment and decree passed by the Trial Court in O.S. No. 557 of 1993 dated 27.6.2002 in

dismissing the Suit. The Appellants were the Defendants and the Respondents were the Plaintiffs in O.S. No. 557 of 1993 before the lower Court.

The case of the Plaintiffs as stated in the Plaint would be as follows:

(i) Originally, the suit property belonged to one Rengasamy. He died in the year 1953. On his death, his wife Valliammai, his daughters Nallammal,

Chinnammal and Manickathammal inherited those properties as his legal heirs and thereafter, the mother Valliammai died in 1959 leaving the said

three daughters as her legal heirs. As per Hindu Succession Act, 1956, the three daughters were equally entitled to 1/3rd share in the suit property.

The three daughters partitioned their property and in the said partition, Manickathammal also got her share in the suit property. She married the

First Defendant. Manickathammal had no issues. Since Manickathammal lived with her husband in Kandiratheertham village, the First Plaintiff

along with the Second Plaintiff were doing cultivation in the land of Manickathammal on lease basis and gave the lease amount to Manickathammal.

In the year 1989, Manickathammal died issueless. Since Manickathammal got the suit property through her father, as per Section 15(2) of the

Hindu Succession Act, her father''s legal heirs are entitled to the properties of Manickathammal.

(ii) The First Defendant has no right in the properties of Manickathammal. A Settlement Deed executed by the First Defendant in favour of his

Second Wife, the Second Defendant on 4.9.1992 was not valid in law. In respect of the same property, a Sale Deed executed in favour of the 3rd

Defendant is also not valid in law. Based on the same, the 2nd & 3rd Defendants have no right to claim the suit property. The First Defendant died

during pendency of the Suit proceedings. The First Plaintiff also died during the pendency of the Suit on 4.3.1994. The First Plaintiff has executed

a registered Will in favour of her daughter, the 3rd Plaintiff. The property, which belonged to the mother of the Second Plaintiff and the property of

Manickathammal came to the hands of the 2nd Plaintiff as per family arrangement. Thus, the suit property was enjoyment by the Plaintiffs. In the

''B'' schedule property, already there was a thatched house but the same had fallen down and at present, the said place was vacant. The 1st & 2nd

Defendants were living 35 kms away from the suit property, from the date of their marriage. The Defendants did not give any reply to the notice

issued by the Plaintiffs through their Counsel. Hence, the Plaintiffs prayed for declaration that the ''A'' and ''B'' schedule properties belonged to the

2nd & 3rd Plaintiffs and for issuance of Permanent Injunction restraining the Defendants from disturbing the peaceful possession and enjoyment of

the suit property by the Plaintiffs.

The objections of the Defendants raised in the Written Statement filed by them would be as follows:

The suit property belonged to Rengasamy. After his death, the suit property devolved on his wife Valliammal and after Valliammal''s death the suit

property devolved on her three daughters and the three daughters partitioned the properties and each of them were enjoying their property

separately. During Partition, the suit property came to the hands of Manickathammal and there is no dispute in that regard. It is not correct to state

that Manickathammal died intestate leaving the suit property. On 17.1.1989, Manickathammal executed an unregistered Will in favour of the First

Defendant in respect of the suit property. Thus, the suit property will not go into the hands of heirs of Manickathammal''s father. The 1st & 2nd

Plaintiff has no right in the suit property. The Sale Deed executed by the First Defendant in favour of the 3rd Defendant on 4.9.1992 in respect of

''B'' schedule property is valid in law. At the same time, the Gift Deed executed by the First Defendant in favour of the 2nd Defendant in respect of

the ''A'' schedule property is also valid in law. From the date of execution of the Sale Deed and Gift Deed, the suit property was in enjoyment of

the 2nd Defendant''s brother Nallathambi. The 3rd Defendant is the daughter of Nallathambi. Both of them are living in the village where the suit

property is situated. The Defendants have sent reply to the notice sent by the Plaintiffs'' Counsel. Hence, the Suit may be dismissed.

The case of both parties stated in the reply statement and the additional Written Statement would be thus:

(i) In the reply statement it was stated that Manickathammal did not executed any Sale Deed on 17.1.1989. The said Will is a fabricated one. The

Will was fabricated in order to get property right and to reject the right of the Plaintiffs. According to Hindu Succession Act, the suit property

belonged only to the legal heirs through Manickathammal''s father. Further, the alleged Will dated 17.1.1989 or the Xerox copy of the alleged Will

was not produced by the Defendants before the Court and no statement was made in the counter in respect of the production of the alleged Will.

(ii) In the additional Written Statement filed by the Defendants it was stated that it is true to state that Manickathammal had executed a Will. Since

it was an unregistered Will, it will be produced at the time of trial. Ignoring the other legal heirs, the First Plaintiff has executed the Will in favour of

the 3rd Plaintiff. Since it was accepted by all the Plaintiffs, it cannot be stated that the Will is fabricated and it should be rejected.

S.A. No. 25 of 2004:

This Appeal is directed against the common judgment and decree passed in A.S. No. 256 of 2002 along with A.S. No. 255 of 2002 dated

30.6.2003 in reversing the judgment and decree passed in O.S. No. 894 of 1994 dated 27.6.2002 in decreeing the Suit.

The Appellant was the Plaintiff and the Respondent was the Defendant before the Trial Court.

The case of the Plaintiff as stated in the Plaint would be as follows:

The facts in this Suit and the facts in O.S. No. 557 of 1993 are similar. The 2nd Defendant in O.S. No. 557 of 1993 is the Plaintiff in this Suit. The

Third Defendant in O.S. No. 557 of 1993 is the Defendant herein. The son of Chinnammal is the Defendant herein. This Suit has been filed seeking

Permanent Injunction. When the Plaintiff had gone out of station, the Defendant, in order to sell the property to Kotarai Alagappa Paayachi, tried

to cut the babul trees standing in the suit property. The same was thwarted by the brother of the Plaintiff. Since there is likelihood of the Defendant

to cut the trees again, the present Suit has been filed seeking permanent injunction.

The objections raised by the Defendant in the Written Statement would be as follows:

The Plaintiff does not have any right in the suit property. The allegation that he was enjoying the property through his brother is also not true. It is

not true to state that the Defendant tried to cut the trees when the Plaintiff was not in station. After the death of Manickathammal, the suit property

devolved on the Defendants family and Muthusamy family and they were enjoying the same. Since the Plaintiff in this Suit and her husband are

interfering with the enjoyment of the suit property by Chinnammal and Muthusamy, the Suit O.S. No. 557/1997 has been filed. Since no

declaration has been asked for in this Suit, the Suit filed by the Plaintiff herein has to be rejected. The ''A'' schedule property of the Suit O.S. No.

557 of 1993 is shown as the suit property in O.S. No. 894 of 1994.

The Trial Court had framed necessary issues in both the Suits and clubbed both cases for a common trial. The Trial Court has recorded the

evidence in O.S. No. 557 of 1993 and the said evidence was treated as the evidence for the connected Suit, O.S. No. 894 of 1994. After the

appraisal of the evidence adduced on both sides, the Trial Court had come to a conclusion of dismissing the Suit in O.S. No. 557 of 1993 and

decreed the Suit without costs in the Suit in O.S. No. 894 of 1994 in a common judgment rendered on 27.6.2002.

Aggrieved by the common judgments and the decrees passed in O.S. No. 557 of 1993 & O.S. No. 894 of 1994, the Plaintiffs in O.S. No.

557 of 1993 and the Defendant in O.S. No. 894 of 1994 preferred Appeals respectively in A.S. No. 255 of 2002 & 256 of 2002 before the 1st

Appellate Court. The 1st Appellate Court had also taken both the Appeals jointly and heard the arguments and passed a common judgment on

30.6.2003 and thereby reversed the judgments and decrees passed by the Trial Court and thus, both the Appeals were allowed.

The aggrieved Defendants in O.S. No. 557 of 1993 and the Plaintiff in O.S. No. 894 of 1994 preferred these two Second Appeals before this

Court. On the admission of both the Appeals, this Court had formulated common substantial questions of law on 6.1.2004 for being considered in

these Appeals which are as follows:

Whether the Courts below erred in applying Section 15(2) of the Hindu Succession Act to the property of the deceased when partition was

specifically pleaded by the Respondents.

Whether the Lower Appellate Court went wrong in rejecting the Will when there is abundant evidence available on record to prove the Will.

For convenience, the status of parties in O.S. No. 557 of 1993 is being maintained, infra, as the evidence was recorded before the Trial Court

in the said Suit only.

Heard Mr. R. Selvakumar, learned Counsel for the Appellants/Defendants and Mr. P. Valliappan, learned Counsel for the

Respondents/Plaintiffs.

The learned Counsel for the Appellants (Defendants in O.S. No. 557 of 1993) would submit in his argument that the 1st Appellate Court had

interfered with the well considered judgment of the Trial Court without any sufficient reasons. He would also submit that the non-registration of the

Will would not raise any suspicion over the genuineness of the Will. He would further submit that the non-inclusion of the entire properties of the

Testatrix would not also create any suspicion in the minds of the Court. However, the 1st Appellate Court had doubted the genuineness of the Will

and had come to an erroneous conclusion. He would also submit that the irrevocability of the Will was not the intention of the Testatrix and the

mere reading of the Will would go to show the character of the Will that it is revocable or modifiable by the Testatrix, she had expressed her

intention not to revoke the said particular Will. He would further submit that merely because of expressing her intention in the Will itself, it would

not restrain her from cancelling or revoking the Will, since it was already stated in the Will. He would further submit in his argument that the

evidence of PW1 & PW2 in respect of revocability of the Will, cannot be sustained. He would also submit that the Will produced in Ex. B2,

cannot be treated as Settlement Deed merely because the intention of the Testatrix has been expressed that she has no intention to revoke the said

Will. He would further submit that the findings of the 1st Appellate Court that the said Will-Ex. B2 has to be treated as Settlement Deed and in the

said circumstances, the said document ought to have been registered compulsorily and without such registration of the said document that could not

be relied upon in evidence, cannot be sustained because, the intention of the Testatrix cannot be mis-interpreted to the character of the document

as the Settlement Deed. He would further submit that if the impugned Will-Ex. B2 has been read in full, it would clearly show that it was only an

expression of her Will for not revoking the same and that would show that she has the power of revoking the Will at any time and to dispose the

said property as per her wish. She would also submit that the 1st Appellate Court has passed its findings only on the said notion and if the Will-Ex.

B2 is considered out and out as a Will, the findings of the Trial Court ought to have been registered. He would also submit that when the Will is

proved to be true and genuine, it will come into force on the death of the Testatrix, Manikathammal and thus, the husband of the Defendant

Ponnusamy would get the entire property through the said Will. He would also submit that after the death of Ponnusamy, naturally, the Defendant

would get at the property as his legal heirs and the Plaintiffs have no legs to stand for claiming the property. He would further submit that even

though the Will-Ex. B2 was not considered to be a true document, the properties belonged to Manikathammal would be inherited by her husband

Ponnusamy as per the provisions of Section 15 of Hindu Succession Act. He would also submit that the said Ponnusamy being the husband of

Manikathammal, is entitled to the separate properties of his wife as per Section 15(1)(a) of the said Act. He would also submit that even though,

the suit properties were originally belonged to the mother of Manikathammal, the said Manikathammal had got the properties by virtue of a

partition had in between the daughters of her mother and therefore, the character of the property that she got it through mother would be lost and

therefore, the Proviso u/s 15(2)(a) of the said Act would not apply to the present case and the provisions of Section 15(1)(a) would only come

into operation. He would, therefore, submit that even otherwise, the Will is not found to be true, the said Ponnusamy being the husband of

Manikathammal would get at the properties and after his demise, it would devolve only upon the Defendant. He would further submit that the

Defendants have preferred the Will by examining the Attestors as DW2 & DW3 and the scribe as DW4 and they have clearly spoken about the

execution of the Will by the said Manikathammal and there was no contradiction in the evidence regarding execution of the Will. He would also

submit that the alleged contradiction found by the 1st Appellate Court are not in respect of the attestation and execution of the Will and therefore,

their evidence should not be rejected by the 1st Appellate Court. He would also submit that the evidence of DW1 was also not properly

appreciated by the 1st Appellate Court. He would further submit that the requirements of proof u/s 68 of the Indian Evidence Act have been

complied with by examining D.Ws. 2 to 4 and therefore, there should not be any interference in the judgment of the Trial Court. He would further

submit that the presence of the Attestors as well as the scribe of Ex. B2-Will, were not questioned in their cross-examination and therefore, their

evidence adduced towards the proof of Ex. B2-Will, cannot also be suspected. He would also submit that the evidence given by DW4 that the

Will which cannot be revoked would be a Settlement Deed, cannot hold water, since he was not an authority to say so. He would also submit that

the construction of the Will have been spoken by the scribe DW4, who is the best witness to explain the same, however, the 1st Appellate Court

had shown the reasons for the gaps left in each of the pages would not be accepted. He would further submit that since Ex. B2 was the Will does

not require compulsory registration and its genuineness is doubted merely because it was an unregistered document. He would also cite a judgment

of the Hon''ble Apex Court reported in Mauleshwar Mani and Others Vs. Jagdish Prasad and Others, for the principle that the entire construction

of the Will has to be read for deciding the character of the said document as a Will.

He would also cite a judgment of this Court reported in T.N. Krishna Pillai, K. Shanmugathammal Pillai, Peramu Ammal Pillai (Died), A.

Ramalakshmi Ammal Pillai, Annamalai Pillai, Thamburatti and Shanmughasundari Vs. K. Nallaperumal, K. Balasubramanian, Parvathi Ammal and

P. Natarajan, for the principle that in a case of a Will, the last intention of the testator would be given effect to. Relying upon the said judgment, he

would argue that the intention of the testator was to give benefit to her husband through the said Will and therefore, the character of Ex. B2 cannot

be questioned. He would rely upon a judgment of the Hon''ble Apex Court reported in Sadhu Singh Vs. Gurdwara Sahib Narike and Others, , for

the same principle. He would also cite a judgment of this Court reported i Govindan Chettiar (Died) Vs. Akilandam alias Seethalakshmi and 24

others for the principle that the scribe can be treated as an attesting witness. He would also cite a judgment of this Court reported in M.S.P.

Rajesh Vs. M.S.P. Raja and Others, for the principle that no Will can be doubted merely on the fact that the Will was not a registered document.

He would further submit that the properties were admittedly belonged to Manikathammal and she had executed the Will under Ex. B2 and it was

properly proved before the Trial Court and the judgment and decree passed by the Trial Court on the basis of the evidence was considered to be

in accordance with law but the said judgment of the Trial Court has not been affirmed but reversed by the 1st Appellate Court which cannot be a

correct finding. He would also submit that the 1st Appellate Court had interfered in the well considered judgment passed by the Trial Court and the

1st Appellate Court had also come to the reversal of the Trial Court''s judgment, which have not been warranted. The Appellants/Defendants have

filed the Suit, which was also dismissed by the 1st Appellate Court. He would also submit that when the Will was found to have been proved

automatically, the Defendants would get at the property through the deceased Ponnusamy, the husband of Manikathammal. He would, therefore,

request the Court to set aside the judgment and decree passed by the 1st Appellate Court in reversing the judgment of the Trial Court.

The learned Counsel for the Respondents/Plaintiffs would submit in his argument that admittedly, the suit properties in O.S. No. 557 of 1993

devolve upon Manikathammal from her mother and apart from the said properties, she also got the properties purchased in her name by her

husband but the properties derived by her from her mother were alone shown in the Will. He would further submit in his argument that the Will was

an unregistered one. The Will said to have been executed by the Testatrix-Manikathammal on 17.1.1989 was stated to have come into force on

the death of Manikathammal, in the year 1989. If really, the Will was a true document, the subsequent sale effected by her husband Ponnusamy to

some other third party on 4.9.1992 by Ex. A19 equivalent to Ex. B10 would have a reference about the devolution of the said property through

Ex. B2-Will. But the vendor Ponnusamy had referred the devolution of the property in his favour ancestrally. He would further submit that the said

mention by the husband of Manikathammal in Ex. A19 as ancestral property would go to show that there was no existence of the Will at the time

of Ex. A19. He would further submit in his argument that the non-registration of the Will would increase the gravity of the suspicious circumstances

of the said Will. He would also submit that if really a Will was a true and genuine document, the derivation of the property by the vendor

Ponnusamy ought to have been mentioned as he derived the said property through the Will executed by Manikathammal. He would further submit

that the said suspicion would enlarge further on the contradictory evidence given by the Attestor as well as the scribe while they were examined

DW2 to DW4. He would also point out certain discrepancies in their evidence and had drawn the support from the judgment of the 1st Appellate

Court in mentioning the said contradiction. He would also submit that the Will said to have been executed by Manikathammal could be a

concocted one since the properties purchased in the name of Manikathammal were not included in the said Will. He would also submit that the

evidence of D.Ws. would go to show the right in the properties mentioned in the Will meant to have obtained by the beneficiary Ponnusamy on the

date of execution of the Will itself and this would go to show that the said document Ex. B2 was not considered to be a Will since the right at

presently were stated to have been created. He would also submit that the said Will was containing 5 pages in which the Testatrix was stated to

have put her thumb impression in all the pages but the evidence of D.Ws. 2 to 4 are contradictory regarding the total pages of the Will and this

would go to show that the Will was not a true and genuine document but was concocted by the Defendant''s husband and the witnesses. He would

also submit that when the Will was not considered to be a true document, the properties belonging to Manikathammal should be distributed among

her legal representatives u/s 15 of the Hindu Succession Act. The suit properties were admittedly belonged to the mother of Manikathammal and

she derived from her mother only and therefore, it would not devolve upon the heirs mentioned u/s 15(1) of the Act since she had no children. He

would also submit that the husband Ponnusamy was also excluded from inheriting the property from his wife. Since the properties were obtained

by her from her mother, the devolution would be only upon the heirs of Manikathammal u/s 15(2)(a) of the Act, namely the heirs of the mother of

Manikathammal. The Plaintiffs who are the heirs of Manikathammal u/s 15(2)(a) of the Act would get at the properties in the absence of any

testament validly executed by Manikathammal. He would draw the attention of the Court to various judgments of this Court, Karnataka High

Court and Hon''ble Apex Court. He had cited a judgment of this Court reported in Mookayi Ammal and 3 others Vs. Duraiswamy Udayar and 2

others for the principle that the Court had to consider the surrounding circumstances, while appraising the evidence of the Attestors when the legal

heirs of the Testatrix through intestate succession were disinherited by virtue of the bequeaths made in the Will. He would also bring it to the notice

of this Court to a judgment of the Hon''ble Apex Court reported in Kartar Kaur and Another Vs. Milkho and Others, for the principle regarding

the duty of the propounder to dispel the suspicious circumstances. He would also bring it to the notice of this Court in respect of a judgment of this

Court reported in Govindan Chettiar (Died) Vs. Akilandam alias Seethalakshmi and 24 others , for the principle that the scribe would not be

treated as an attesting witness to prove the said Will. He would also cite a judgment of Delhi High Court reported in Dinesh Kumar Vs. Khazan

Singh and Others, for the principle that the propounder has to prove the genuineness and satisfy the conscience of the Court regarding the truth and

genuineness of the Will. Yet another judgment of this Court reported in T.N. Krishna Pillai, K. Shanmugathammal Pillai, Peramu Ammal Pillai

(Died), A. Ramalakshmi Ammal Pillai, Annamalai Pillai, Thamburatti and Shanmughasundari Vs. K. Nallaperumal, K. Balasubramanian, Parvathi

Ammal and P. Natarajan, , was also relied upon by the Counsel for the Respondents for the principle that the last intention of the testator has to be

considered for perceiving the testators intention. For relying upon the said principle, he would submit that the Ex. B3 would be considered as

irrevocable document and it would not be a Will. He would also quote the judgment of this Court reported in Gangammal and others v. Mari

Moopan and others, 2002 (1) MLJ 116, for the principle that when any suspicious circumstances clouded the attestation and execution of the Will,

the propounder of the Will has to dispel such suspicious circumstances. Relying upon the said principle, he would submit that the Defendants have

not cleared the suspicious circumstances cast upon the Will-Ex. B2 in order to show that it is a genuine document. He would also rely upon a

judgment of Karnataka High Court reported in T.M. Channabasamma and Others Vs. T.M. Rudriak and Others, for the same principle. He would

also submit in his argument that the Will could not be considered as a true and genuine document and if the Will is not found to be true, the

Plaintiffs would be the legal heirs of the deceased Manikathammal and the Defendants would not get any property under the guise of the Will. He

would also cite a judgment of the Hon''ble Apex Court reported in V. Dandapani Chettiar Vs. Balasubramanian Chettiar (Dead) by Lrs. and

Others, , for the principle that the character of the property derived from the mother would not be changed merely because any partition has

intervened in between the co-owners. He would also submit that the partition had by Manikathammal with her sister, after the death of her mother

would not in any way change the character of the property that she had inherited from her mother and therefore, the suit properties which are

admittedly the properties inherited by Manikathammal would devolve upon her mother''s heirs namely the Plaintiffs, since the Will said to have

been executed by Manikathammal was not a true and genuine document. He would, therefore, request the Court that the judgment and decree

passed by the 1st Appellate Court are in accordance with law and they are not liable to be interfered. He would also submit that the two Appeals

filed by the Appellants have no legs to stand and therefore, may be dismissed with costs.

I have given anxious thoughts to the arguments advanced on either side.

The Suit in O.S. No. 557 of 1993 was filed by the Plaintiffs seeking for a declaration that the Suit ''A'' and ''B'' schedule properties are

belonging to the Plaintiffs 2 & 3 and the Plaintiffs possession and enjoyment in respect of the suit properties should not be disturbed by the

Defendant or their men or agents. The 2nd Defendant in O.S. No. 557 of 1993 had also filed a Suit in O.S. No. 894 of 1994 against the 3rd

Plaintiff in O.S. No. 557 of 1993 seeking for permanent injunction against the Defendant (3rd Plaintiff in this Suit) or his men from interfering with

the Plaintiffs (2nd Defendant in this Suit) possession and enjoyment of the suit properties and also for costs. The suit properties in O.S. No. 557 of

1993 are the same as in O.S. No. 894 of 1994. The relationship in between parties namely, the 1st Plaintiff was the sister of Manikathammal and

Nallammal, who were of the daughter of one Valliammai and the 3rd Plaintiff-Kannusamy was the son of 1st Plaintiff-Chinnammal and the 2nd

Plaintiff was the son of Nallammal. The case of the Plaintiff is that the said Manikammal, was given in marriage to Ponnusamy at Kandiratheertham

and was living with the said Ponnusamy, the 1st Defendant and they had no issues through the wedlock. The case of the Defendant that the 2nd

Defendant was married to the 1st Defendant even during the life time of Manikathammal, which was also not seriously disputed by the Plaintiffs. It

was also not disputed that the 3rd Defendant was the son and the 2nd Defendant''s brother namely Nallathambi. The further case of the Plaintiffs is

that the suit properties originally belonged to one Rangasamy and on his death, his wife Valliammai and daughters Nallammal, Chinnammal and

Manikathammal who inherited those properties and thereafter, the mother Valliammai died in the year 1959 leaving three daughters namely,

Nallammal and Chinnammal and Manikathammal as her heirs under Hindu Succession Act, 1956 and they are equally entitled to 1/3rd share in the

suit properties and they have also partitioned their properties and in the said partition, the said Manikathammal got the suit properties which was

also not seriously disputed. Therefore, it is clear from the case of both parties that the suit properties were belonging to Manikathammal and she

was the owner of the said properties. The evidence adduced in this case would also go to show that the 1st Defendant had also purchased certain

other properties in the name of Manikathammal at Kanditheertham and the said property was also enjoyed by the said Manikathammal.

The case of the Plaintiffs that the said Manikathammal died subsequently without any issues and the properties being inherited by her from her

father via mother in the year 1959, along with other heirs of her mother as per the provisions of Hindu Succession Act, has been denied by the

Defendants. Therefore, the Plaintiffs have filed the Suit for declaration. The Defendants stand would be that the said Manikathammal was no doubt

the owner of the property but she had executed an unregistered Will on 17.1.1989 in a sound and disposing state of mind, in the presence of two

Attestors in respect of the suit properties in favour of her husband Ponnusamy (1st Defendant) and the said Will came into force on the death of

Manikathammal in the year 1989. The further case of the Defendant would be that since the said Will came into force and the Will was acted upon

by selling one of the suit properties by the 1st Defendant through Ex. B10, the Plaintiffs would not get any right in the suit properties. The further

case of the Defendant would be that even otherwise, the Will is not true, the suit properties inherited by Manikathammal, cannot be treated as the

properties inherited from her mother or father, since the said properties were subsequently divided through a partition between the sisters and

therefore, the property would be deemed as the exclusive properties of Manikathammal. Therefore, the Defendants claim that the 1st Defendant

would get at the property as per the provisions of Section 15(1)(a) of the Act and hence, the Defendants would pray that the Suit has to be

dismissed.

The Trial Court had dismissed the Suit filed by the Plaintiffs and decreed the Suit filed by the Defendant in O.S. No. 894 of 1994 without

costs. For that, it had come to the conclusion that the Will produced in Ex. B2 was proved to have been executed by Manikathammal in a sound

and disposing state of mind in the presence of attesting witnesses, after relying upon the evidence of DW2 to DW4, the Attestors and scribe. The

1st Appellate Court, on Appeal by the Plaintiffs, had reversed the said judgment and had come to the conclusion that the Will was not a true

document and the Plaintiffs are entitled to inherit the suit properties as legal representatives of the deceased Manikathammal u/s 15(2) of the Act.

While decreeing the Suit of the Plaintiffs, the 1st Appellate Court had dismissed the Suit filed by the 2nd Defendant filed against the 3rd Plaintiff.

We have to consider the arguments advanced on either side and to decide whether the 1st Appellate Court is right in reversing the judgment of

the Trial Court in both the Suits.

As discussed earlier, the suit properties were obtained by Manikathammal from her mother through a partition had in between her sisters. The

case of the Defendant would be that she has executed a Will in favour of the 1st Defendant, however, it has been contended by the Plaintiff that it

has been a concocted Will. The arguments advanced was that if really the Will was in existence in an unregistered stage and the property has been

derived by the 1st Defendant through the said Will that should have been found a place in a subsequent Sale Deed executed by the 1st Defendant,

in respect of one of the suit properties in Ex. A19 = Ex. B10. No doubt, the Will dated 17.1.1989 was said to have acted upon on the death of

Manikathammal in the year 1989 itself. Therefore, the 1st Defendant, who was the husband of Manikathammal, if really derived the said property

through the Will ought to have mentioned the way of devolution as he got through the Will-Ex. B2 in Ex. A19. Ex. A19 is a document subsequent

to the Will i.e. On 4.9.1992. On a careful perusal of the said document, I could see that the devolution of the said property was said to have

obtained by him ancestrally. There was no reference as to the devolution of the property through the Will dated 17.9.1989 (i.e.) Ex. B2. In the

back drop of this circumstance, if we approach the proof of execution of the Will, I could see that the evidence on DW2 & DW3 the Attestors,

are very important witnesses for deciding the case. According to the submission of the learned Counsel for the Appellants/Plaintiffs, their evidence

were untrustworthy because they have spoken much controversy in their evidence. However, the learned Counsel for the Respondents/Defendants

would submit that such contradictions were related to some other aspects and there was nothing contradictory in respect of attestation and

execution of the Will. When we go through the evidence, I could see that DW2, one of the Attestors would speak in his cross-examination that the

properties were left by the Testatrix to the 1st Defendant on the date of execution of the Will itself and the properties in Kanditheertham was also

bequeathed by the said Manikathammal in favour of the 1st Defendant. Apart from that, he would state that he had seen the Testatrix put her

signature in 3rd page and he did not know about putting the thumb impression in other pages. He would categorically assert that Manikathammal

put her thumb impression in two or three pages in the Will, whereas another Attestor DW3 would state in his evidence that he did not know in,

how many pages Manikathammal put her thumb impression while executing the Will. DW3 would further admit in his cross-examination that

Manikathammal put her thumb impression in 4 papers and on putting the thumb impression in 4th page she put her signature in the Will. He had

also spoken to the effect that the Will was executed in respect of all of her properties. DW3 had also admitted that the property at Kanditheertham

was not included in the Will. When the evidence of DW2 & DW3 were considered in the light of the evidence of the scribe examined as DW4, I

could see that the Will has got 5 pages and in all 5 pages, the said Manikathammal was said to have put her thumb impression. The evidence of

DW2 & DW3 are not quite correct with the evidence of DW4 and the actual pages of the Will in Ex. B2. DW4 scribe would say that the said

Manikathammal had expressed her intention not to cancel the Will and DW4 had also written the same in the Will. DW4 had also admitted that

such references, was a mistake but in the said Will, it has been incorporated. Whether the evidence adduced by the Defendant would show any

proof in respect of Ex. B2-Will as a genuine document. On the basis of the said admission given by DW4, the Will cannot be considered as a

Settlement Deed. For that, the judgment of Hon''ble Apex Court reported in Mauleshwar Mani and Others Vs. Jagdish Prasad and Others, , was

relied upon. The relevant passage would run as follows:

The first and the second question are overlapping and, we shall, therefore, consider both the questions together. Ordinarily, the Rule of

construction of a Will is that a Will (bequeath) has to be read in its entirety and effort should be made that no part of its excluded or made

redundant. In other words, it is the duty of the Court to reconcile if there is any apparent inconsistency in a Will. In Radha Sundar Dutta Vs.

Mohd. Jahadur Rahim and Others, , it was held that if there be admissible two constructions of a document, one of which will give effect to all the

clauses therein while the other will render one more of them nugatory, it is the former that should be adopted on the principle expressed in the

maxim ''ut res magis uaieat quam pereat''.

Yet another judgment of the Hon''ble Apex Court reported in Sadhu Singh Vs. Gurdwara Sahib Narike and Others, has been relied upon for

the principle that the later clause of the Will only be relied upon:

20... Thus on reconciling the various clauses in the Will and the destination for the properties that the testator had in mind, we have no hesitation in

coming to the conclusion that the apparent absolute estate in favour of Isher Kaur has to be cut down to a life estate so as to accommodate the

estate conferred on the nephews.

There is no doubt that in a Will, the later clause will prevail. On a careful perusal of Ex. B2, it has been mentioned as follows:

Similarly yet another sentences in the Will has been referred to for the purpose of finding the character of the said document namely--

According to the submission of the learned Counsel for the Respondent, the rights of the suit properties were intended to be transferred in

praesenti and right of revocability was not reserved by the Testatrix even though, she has stated in the earlier sentence as so and therefore, the said

Will, even if true, could not be treated as a Will, His further contention would be that if really, the right in the property has been transferred in

praesenti on the date of execution of Ex. B2, it should be considered as a Settlement Deed executed in favour of the 1st Defendant but the

settlement requires some other duty and it should compulsorily a registrable document and therefore, it cannot be received in evidence. The said

argument advanced by the learned Counsel for the Plaintiffs are in consonance with the principles of law. The evidence of D.Ws. 2 to 4, in respect

of the execution of the Will even though spoken about the attestation of the Testatrix execution but they were not considered to be reliable

because, serious contradictions were made in respect of the pages on which the Testatrix had put her thumb impression. The said contradiction

could have been considered as immaterial in the event, the Will was a registered one. Even if an unregistered Will could have been relied upon, if it

was referred to in the subsequent documents executed by the parties concerned. In Ex. A19=Ex. B10, a Sale Deed executed by the 1st

Defendant in favour of 3rd party in respect of one of the suit properties, which is clearly after the said Will came into force, he did not refer, but the

devolution to the property was stated to have got ancestrally. But it would go to show that there was no Will prior to the execution of Ex. A19 and

therefore, the 1st Defendant had stated that he got the property ancestrally. The said circumstances were not explained by the 2nd Defendant who

was examined as DW1.

It is an admitted fact that the 2nd Defendant was married even during the life time of Manikathammal and she is also claiming the property as

one of the legal representative of the deceased 1st Defendant, which is not in accordance with law. The various judgments cited by the learned

Counsel for the Defendants reported in Sadaram Suryanarayana and Another Vs. Kalla Surya Kantham and Another, ; Govindan Chettiar (Died)

Vs. Akilandam alias Seethalakshmi and 24 others , are not applicable to the facts of the case. There is no reference to the Plaintiffs who are the

legal representatives of the deceased Testatrix but for the Will. The Sub-Registrar Office is stated to have been housed at Keel Pallathur and there

was no reason for not registering the Will immediately after its execution. The non-inclusion of her house property at Kandiratheertham was also

not explained in the evidence of DW1. On the other hand the witnesses DW2 & DW3 would state that the kandiratheertham property was also

included in the Will and it was spoken to by the Testatrix. There are several items of suit properties numbering more than 10 and it was the

evidence of D.Ws. that the Will was constructed by Manikathammal without any particulars in her hand or going through the documents and any

papers regarding description of the properties. These circumstances, would create suspicious circumstances and those circumstances were not

cleared through the evidence of Attestors and scribe. No doubt, the Will is a solemn document, to which, the person executed cannot come to

Court to speak about its genuineness. Therefore, the Courts are very much anxious with the evidence adduced by the Attestors as well as scribes,

who are said to have been connected in the Will. The evidence adduced by D.Ws. 2 to 4 are not trustworthy and they are not helpful to clear the

suspicious circumstances cast upon the execution of the Will and their evidence are not satisfactory. Therefore, the principle laid down in the

judgment of this Court reported in M.S.P. Rajesh Vs. M.S.P. Raja and Others, cannot be made applicable to the present facts of the case. When

the registration was possible, it was not done. Moreover, the evidence of D.Ws. 2 to 4 are not reliable to prove the attestation and execution of

Ex. B2 and therefore, the principle laid down in the said judgments are also not applicable.

The learned Counsel for the Plaintiffs had submitted catena of Judgments of this Court reported in Mookayi Ammal and 3 others Vs.

Duraiswamy Udayar and 2 others in which, it has been categorically laid down as follows:

7...A Will is a solemn document exacted by a person whereby he bequeaths his properties with intent to come into effect after his death. It is

always revocable at the violation of the executant. It is optionally regiterable. In Ex. B-8, a right in praesenti is created and it further declares that

the executant will have no right to cancel the same. These two stipulations in the deed create a doubt in the mind of the Court, whether the

document is a testamentary disposition or not.

He would also cite yet another judgment of this Court reported i Kartar Kaur and Another Vs. Milkho and Others, , which would runs as

follows:

13.... Having executed the Will, why did he execute Sale Deeds in favour of Second Respondent, a minor? Why did he not make a reference to

the registered Will in the Sale Deeds subsequently executed? These are all tale crucial circumstance casting unchangeable clouds hovering around

the genuineness of the Will and the burden is always on the propounder to explain and prove to satisfy the conscience of the Court but miserably

failed to do so.

In the light of the settled principles, we have carefully gone through the evidence and we find that the Trial Court was justified in doubting the

genuineness of the Will and rendering a finding that propounder has not dispelled the suspicious circumstances beyond reasonable doubt. The

Lower Appellate Court, while reversing the judgment of the Trial Court, has simply overlooked or ignored many important aspects dealt with by

the Trial Court. Unfortunately, the High Court without going through the matter dismissed the Second Appeal in two words.

Those judgments would go to show much volume about the dispelling of the suspicious circumstances beyond reasonable doubt, the failure of

which would make the Will unreliable. In this case, the Defendants who were the propounder of the Will-Ex. B2 had failed to explain the

suspicious circumstances and therefore, the evidence of D.Ws. 2 to 4 should have been adduced before the Court as interested witnesses in

connivance with the 1st Defendant. The contradiction in respect of putting the thumb impression by the Testatrix would speak volume about the

falsity of their evidence. The 1st Appellate Court had categorically come to a conclusion that the lower Court failed to understand the case and

thus, dismissed the Suit in O.S. No. 557 of 1993 and decreed the Suit in O.S. No. 894 of 1994 and thus, reversed the findings in both the

Appeals. The reasons put forth by the 1st Appellate Court are in consonance with the principles laid down by the Hon''ble Apex Court.

A fag attempt was made by the learned Counsel for the Appellants/Defendants that the properties obtained by Manikathammal had lost its

character as inherited by her from her mother so as to get the benefit of Section 15(2)(a) of the Act by virtue of getting the said properties through

a partition in between her sisters. For that, the learned Counsel for the Appellant would cite a judgment of the Hon''ble Apex Court reported in

Hardeo Rai Vs. Sakuntala Devi and Others, , in support of his argument. The relevant passage would run thus:

For the purpose of assigning one''s interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners

must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and

ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not

possess the property as ""joint tenants"" but as ""tenants-in-common"". The decision of this Court in SBI, therefore, is not applicable to the present

case.

Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in

the same manner as he can dispose of his separate property.

However, the learned Counsel for the Respondents/Plaintiffs would cite a judgment of the Hon''ble Apex Court reported in V. Dandapani

Chettiar Vs. Balasubramanian Chettiar (Dead) by Lrs. and Others, in support of his argument that the character of the property inherited by a

person from the mother or father will not lose his character merely because it was partitioned between the co-owners or through a compromise

decree. The relevant passage would run thus:

It will be seen from the facts of the present case that Rajathiammal had inherited the property from her mother, the section applicable will be

Section 15(2) of the Act, according to which the properties will go to the heirs of her father and, therefore, the Plaintiff/Applicant and Defendants

2-9/Respondents 2-9 who are the sons and daughters of Rajathiammal''s father, Venugopal Chettiar, through his third wife Nagalakshmi would be

entitled to the suit properties. Therefore, the case put forward by the First Defendant and other contesting Defendants that Rajathiammal inherited

the properties not from her mother but also from her grand-mother and great grand-mother, and, therefore, Section 15(1) of the Act would only

apply cannot at all be countenanced.

In the instant case, Rajathiammal acquired her rights by virtue of compromise which is a reiteration and a declaration of her pre-existing right.

Therefore, on the death of Rajathiammal who died intestate and issueless, the suit properties devolved upon the heirs of her father, Venugopal

Chettiar. The present Plaintiff/Appellant, V. Dandapani Chettiar, who is the son of the father of Rajathiammal through his third wife and

Respondents 2-9 & 23 who are children of the father of Rajathiammal and one of his wives becomes the heirs and entitled to succeed u/s 15(2)(a)

of the Act since the properties came to Rajathiammal under the compromise decree amounts to a declaration of her pre-existing right under the

compromise decree passed by the Courts.

On a careful understanding of the aforesaid judgment of the Hon''ble Apex Court, I could see that the suit properties were obtained by

Manikathammal through a partition in between her sisters after the death of her mother Valliammai in the year 1959, who got it from her husband

Rangasamy. The said property was not a coparcenary property but was the property belonged to her mother. In the case discussed by the

Hon''ble Apex Court reported in Hardeo Rai Vs. Sakuntala Devi and Others, the coparcenary properties were found to have lost their character

on entering into a partition between the co-sharers whereas this property being the exclusive property of mother was divided among the daughters

will not lose its character so as to deprive the right u/s 15(2) of Hindu Succession Act. It is very clearly mentioned in the judgment of the Hon''ble

Apex Court reported in V. Dandapani Chettiar Vs. Balasubramanian Chettiar (Dead) by Lrs. and Others, that the character of the property

obtained from mother would be a reiteration and declaration of her pre-existing right even after, partition or a compromise decree. Therefore, the

said arguments advanced on the side of the Appellants/Defendants that the property lost its character as derived from father or mother so as to

attract Section 15(2) of the Act is not acceptable. Having found that the Will in Ex. B2 was not true, genuine and valid document, the suit property

should have devolved in accordance with the provisions of Section 15 of the Act. On the death of Manikathammal in the year 1989, she had no

issues and therefore, her husband would be only the heir as per Section 15(1)(a) of the Act. It has been already found that the property was

inherited by Manikathammal from her mother and therefore, Section 15(2)(a) alone is applicable for this case. For better understanding and

appreciation, Section 15(2) (a) has to be extracted hereunder:

15(2)(a) Any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased

(including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein,

but upon the heirs of the father; and

As per Section 15(2)(a) in the absence of any issues, son and daughter, the mother or father''s heir will take away the property as the heirs of

the deceased. It is not disputed that the 1st Plaintiff was the sister of Manikathammal and 2nd Plaintiff was the son of Nallammal, another sister and

3rd Plaintiff was the son of another deceased sister Chinnammal. Therefore, the Plaintiffs would be the heirs of Manikathammal to inherit the suit

properties as per the provisions of Section 15(2)(a) of the Act, since the alleged Will produced in Ex. B2 was not found to be a true, genuine and

valid document. Therefore, all these legal principles were followed by the 1st Appellate Court and it had come to the conclusion of reversing the

judgment of the Trial Court made in both the Suits. The judgment and decrees passed by the Trial Court are certainly liable to be interfered and the

1st Appellate Court had rightly interfered in the said judgment and decree passed by the Trial Court and therefore, the judgment and decree

passed by the 1st Appellate Court are not liable to be interfered.

For the foregoing discussion, I am of the considered view that the 1st Appellate Court had correctly perceived the evidence and followed the

principles and had come to the conclusion of interfering with the judgments and decrees passed by the Trial Court in O.S. No. 557 of 1993 and

O.S. No. 894 of 1994 and therefore, they are not liable to be interfered.

The questions of law framed are therefore, not decided in favour of the Appellants. In fine, I am of the considered view that both the Second

Appeals are not having any merits and therefore, they are liable to be dismissed. Accordingly, both the Second Appeals are dismissed. No costs.