Veeramalai v. Palaniyandi

JUDGMENT The third defendant in the suit is the appellant. The predecessor of the respondents 1 to 4 filed a suit for partition claiming 1/5th share in the suit property. The suit was decreed by the trial Court and the judgment and decree passed by the trial Court were confirmed by the first appellate Court. Aggrieved by the concurrent findings, the third defendant has come by way of this second appeal.

¶2According to the plaintiff, the suit property originally belongs to the father of the parties Sangapillai. The plaintiff and the fourth defendant are the daughters of Sangapillai. The defendants 1 to 3 are his sons. It was claimed by the plaintiff that the father of the parties died three years prior to the suit and inspite of the demand made by the plaintiff, the defendants failed to accede to the request of the plaintiff for amicable partition and hence, the plaintiff was constrained to file a suit for partition. Pending suit, the sole plaintiff, died and her legal representatives were brought on record, as plaintiffs 2 to 5.

3.The third defendant alone filed a written statement and resisted the suit on the ground that Sangapillai executed a registered Will dated 19.07.1974 bequeathing the suit property in favour of his wife with life estate and vested remainder in favour of male heirs of the defendants 2 and 3. The other defendants remained ex parte.

4.Before,the trial Court, the husband of the deceased sole plaintiff was examined as P.W.1 and four documents were marked on the side of the plaintiff as Ex.A1 to Ex.A.4. The appellant/third defendant was examined as D.W.1 and one of the attestors to the Will relied on by the third defendant, was examined as D.W.2. The Will was marked as Ex.B1 through D.W.2.

5.The trial Court, an appreciation of evidence available on record, came to the conclusion that the evidence of D.W.2 was not sufficient to prove the Will and accordingly, granted a decree for partition as prayed for. Aggrieved by the same, the third defendant filed an appeal in A.S.No.66 of 1995 on the file of Sub Court, Kulithalai. The first appellate Court concurred with the findings of the trial Court. Aggrieved by the concurrent findings, the third defendant is before this Court.

6.The learned counsel appearing for the appellant by taking this Court to the chief examination of D.W.2 submitted that the attestor to the Will clearly deposed about the attestation in his chief examination and the said witness was won over by the plaintiff and hence, he deposed against the case of the third defendant in his cross examination. The learned counsel further submitted that the Courts below, by taking into consideration the clear evidence of D.W.2 regarding due execution of the Will, ought to have upheld the defence raised by the third defendant and dismissed the suit.

7.A perusal of the evidence of attestor to the Will, who was examined as D.W.2 would suggest that in chief examination, he deposed as if he had seen the testator and other attesting witnesses signing the testamentary document, however, in the cross examination, he deposed as follows:- capy; vOjg;gl;L vj;jid tUlk; MfpapUf;Fk; vd;gJ epidtpy;iy. me;j capy; vOjg;gl;l nghOJ ahh; ahh; ,Ue;jhh;fs; vd;W vd;dhy; $w KbahJ. kzj;jl;ilapypUe;J te;J nfhz;L ,Ue;j vd;dplk; xU ifnaOj;J NghLkhW Nfl;lhh;fs;. ehd; Ngha; Nghl;Nld;. mg;gb $g;gpl;lJ ahh; vd;W vdf;F Qhgfk; ,y;iy. ehd; ifnaOj;J Nghl;Ltpl;L Ngha; tpl;Nld;. ehd; ifnaOj;J NghLk; nghOJ gj;jpuk; vOjg;gl;L g+h;j;jpahfp ,Ue;jJ. gjpthsh; mYtyfj;jpw;Fs; NghNdd;. rhl;rp ifnaOj;J Nghlr; nrhd;dhh;fs;. Nghl;Nld;. gj;jpuj;jpy; vd;d vOjg;gl;Ls;sJ vd;w tpguk; vdf;F Nehpy; njhpahJ. vd;idj; jtpu kw;wth;fs; ifnaOj;Jg; Nghl;lij ehd; ghh;f;ftpy;iy. ehd; ifnaOj;J Nghl;lJ kl;Lk; vdf;Fj; njhpAk;. v.th.rh.M.1 capiy vd;dplk; gbj;Jf; fhl;ltpy;iy. gbj;Jk; ehd; ghh;f;ftpy;iy. mjpy; ahh; ahh; ifnaOj;J Nghl;Ls;shh;fs; vd;w tpguk; vdf;Fj; njhpahJ. v.th.rh.M.1y; ehd; ifnaOj;J Nghl;lJ jtpu NtW VJk; vdf;Fj; njhpahJ. mij ahh; vOjpdhh;fs; vd;w tpguk; vdf;Fj; njhpahJ.

8.Therefore, the evidence of D.W.2 in his chief examination, has been shattered in his cross examination. The learned counsel submitted that D.W.2 has been won over by the plaintiffs' side and hence, he deposed against the case of the the third defendant in his cross examination. However, it is seen that D.W.2 was cross-examined immediately after chief examination on the same day and there was no time gap between the chief examination and cross examination. In such circumstances, the submission made by the learned counsel for the appellant that D.W.2 was won over by the plaintiffs' side is not acceptable to this Court. Though D.W.2 deposed in chief examination as if he had seen the testator and other attestor to the testamentary document signing the same, in his cross examination, had deposed that he has not seen any other person signing the testamentary document. He was also unable to recollect who are all the persons present at the time of execution of document. He had also gone to the extent of saying that when he was signing the document, the execution of the entire document was completed. Therefore, his evidence in chief examination was completely shattered by his answer in the cross examination. Based on the evidence of D.W. 2, we cannot safely come to the conclusion that testamentary document relied on by the third respondent was proved. Both the Courts below rightly discarded the evidence of D.W.2 and came to the conclusion that the Will was not proved. The appellant who is the propounder of the Will also failed to lead any other evidence as contemplated under Section 71 of Evidence Act. Therefore, I do not find anything to interfere with the said factual conclusion reached by the Courts below. Accordingly, this Second Appeal is dismissed as devoid of any substantial question of law. No costs.

16.04.2024 NCC : Yes / No Index : Yes / No Internet : Yes / No cp To

1.The Subordinate Judge, Kulithalai.

2.The Additional District Munsif, Kulithalai.

3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai. S.SOUNTHAR

, J.

cp

16.04.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.04.2024 CORAM: THE HONOURABLE MR.JUSTICE S.SOUNTHAR Veeramalai ...Appellant -Vs- 1.Palaniyandi 2.Ponnayee 3.Murugesan 4.Minor.Kunjammal Represented by Father Guardian first respondent Palaniyandi 5.Ponnambalam (died) 6.Mahamuni 7.Peryakkal 8.Sannasi 9.Saroja 10.Kailasam(died) (Respondents 8 to 10 are brought on record as LRs of the Deceased R5 vide Court order dated 24.02.2021 made in C.M.P(MD) Nos.3237 to 3239 of 2020) 11.Manickam 12.Selvi 13.M.Raja 14.Revathi ... Respondents (Respondents 11 to 14 are brought on record as LRs of the deceased 10th Respondent vide Court order dated 14.06.2023 made in C.M.P(MD) No.1128 of 2022 ) PRAYER : Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 27.03.2000 made in A.S.No.66 of 1995 on the file of the Subordinate Judge, Kulithalai, confirming the judgment and decree made in O.S.No.61 of 1988, dated 23.02.1990, on the file of the Additional District Munsif, Kulithalai. For Appellant : Mr.K.Govindarajan for M/s.Sarvabhauman Associates For R1 & R4 : Mr.T.Selvam For R6 & R7 : No appearance