Professional Documents
Culture Documents
Second Appeal
Second Appeal
Date: 29.3.2012
Coram
1. Saroja Ammal
2. M.Nallathambi
3. M.Dharmalingam
4. M.Balasubramanian
5. M.Ramasamy
6. M.Anbazhagan
7. Prabavathi
8. Sargunam
9. Jothi
10. Vajjravel
11. Dhanalakshmi
12. Vasantha
13. Prema
14. Varadambal
15. V.Soundarapandian
16. V.Chandrasekaran ..Respondents/Plaintiff &
Defendants 1 to 5 & 8 to 17
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JUDGMENT
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5. It is submitted by the learned counsel for the appellant that
having regard to Ex.B1 sale deed wherein the first
respondent/plaintiff described herself as wife of Marimuthu Gounder,
the birth certificate of the daughters of the first
respondent/plaintiff viz., Exs.B2 and B3 wherein they were described
as daughters of Marimuthu Gounder and the first respondent, Ex.B5
marriage invitation of the daughter of the first respondent and
Ex.B7, the affidavit filed by the first respondent in C.C.No.543 of
1977 wherein she claimed herself as the wife of Marimuthu Gounder and
filed the complaint for defamation for having referred herself as
the concubine of Munisamy Chettiar would prove that she was not be
the wife of Munisamy Chettiar and even assuming that Munisamy
Chettiar and the first respondent/plaintiff were living together in
the same house that will not lead to the presumption that she is the
widow of Munisamy Chettiar when she is admittedly the wife of
Marimuthu Gounder. He further submitted that the court below,
without properly appreciating the suspicious circumstances
surrounding the execution of the Will and the signatures found in the
Will and the admission of PW2, one of the attesting witnesses and the
admission of PW1, the first respondent that in or about the time of
execution of the Will, the testator Munisamy Chettiar has undergone
operation and his right toe and another finger were removed and
considering these facts, the courts below ought to have held that the
Will was not executed by Munisamy Chettiar and mere registration will
not lead to any presumption that the Will was executed by the
Testator while he was in a sound and disposing state of mind and
though there were five attesting witnesses to the Will, PW2, who is
admittedly the sister's son of the first respondent/plaintiff alone
was examined to prove the attestation and therefore, it could not be
stated that the Will was executed by the testator while he was in a
sound and disposing state of mind. The learned Senior Counsel further
submitted that having regard to the admitted signatures of Munisamy
Chettiar in the letters marked in the suit as Ex.B19, it cannot be
stated that the signatures in the Will, would have been made by the
testator and all the signatures are different from one another and
these aspects were not considered by the courts below while upholding
the Will in favour of the first respondent. The learned Senior
Counsel, therefore, submitted that the courts below erred in holding
that the first respondent was the legally wedded wife of Munisamy
Chettiar and the Will was executed by the testator while he was in a
sound and disposing state of mind.
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than 30 years and therefore, she was presumed to be the wife of
Munisamy Chettiar relying upon the judgment of the Honourable
Supreme Court and therefore, the concurrent findings of fact that the
first respondent was the wife of Munisamy Chettiar cannot be infered
with. The learned counsel further submitted that Ex.A9 Will was a
registered Will and Munisamy Chettiar died four years later and after
the execution of the Will, he sold various items of property to
P.Ws.4 to 6 and admittedly, prior to the execution of the Will, there
was a partition among the children of Munisamy Chettiar and himself
and certain properties were allotted to the share of Munisamy
Chettiar and those properties were dealt with under the Will and
admittedly, the children of Munisamy Chettiar did not take care of
him and he was taken care of by Saroja Ammal, the first
respondent/plaintiff and therefore, there is nothing wrong in
executing the Will in favour of the vendor and the due execution of
the Will was also spoken to by PW2 and his evidence was not impeached
in cross examination and the lower appellate court has considered
various suspicious circumstances alleged to have been existed at the
time of execution of the Will and after considering all those
aspects, held that the Will was executed by Munisamy Chettiar while
he was in a sound and disposing state of mind and therefore, the
concurrent findings of fact cannot be interfered with in the second
appeal.
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presumed that the first respondent was the wife of Munisamy Chettiar.
Admittedly, the first respondent was the wife of Marimuthu Gounder
and in chief examination, she admitted that she was married to
Marimuthu Gounder and after deserting him, she married Munisamy
Chettiar. She further stated that her marriage with Munisamy
Chettiar took place in the year 1960. Exs.B2 and B3 are the birth
certificates issued in favour of the daughters born to Marimuthu
Gounder and the first respondent and that was also accepted by the
first respondent in cross-examination. Ex.B1 is the registration copy
of the sale deed dated 2.12.1970 and in that document, the first
respondent was described as the wife of Marimuthu Gounder. Ex.B4
dated 20.10.1980 is the letter given by the first respondent to the
Tamil Nadu Electricity Board wherein she has given her address at
Mitapally, Uthangarai Taluk, Dharmapuri whereas Munisamy Chettiar was
residing at Singarapettai Post, Gurugapatti Village Uthangarai Taluk.
Ex.B5 is the marriage invitation of the daughter of the first
respondent through Marimuthu Gounder and in that invitation also, the
name of the bride was described as daughter of Marimuthu Gounder and
the first respondent.
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10. As stated supra, if the first respondent had not been married
to Marimuthu Gounder, then the courts below were right in drawing the
presumption relying upon the judgments of the Honourable Supreme
Court referred to above. But, in this case, having regard to the
clear admission by the first respondent and having regard to the
documents viz., Exs.B1 to B7 as referred to above and Ex.B30, it
cannot be presumed that the first respondent lived as second wife of
Munisamy Chettiar and no presumption can be drawn having regard to
the long cohabitation. The exhibits would also prove that the first
respondent was not residing with Munisamy Chettiar and even in the
year 1980, as evidenced by Ex.B4, complaint given by the first
respondent to the Tamil Nadu Electricity Board, Ex.B7, the private
complaint given in C.C.No.543 of 1977 and Ex.B30, the voter list of
the year 1995, the first respondent would not have lived with
Munisamy Chettiar at his residence. Admittedly, Munisamy Chettiar
had a wife by name Muthammal and she was living with Munisamy
Chettiar till she died in the year 1989 and Munisamy Chettiar did not
divorce his wife Muthammal during her life time.
12. Next, we will have to see whether the first respondent has
proved Ex.A9 Will. According to me, irrespective of the fact whether
the first respondent was the wife of Munisamy Chettiar or not, if the
first respondent is able to prove that Ex.A9 was executed by Munisamy
Chettiar while he was in a sound and disposing state of mind, she is
entitled to the relief of declaration and injunction. Therefore, we
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will have to see whether the first respondent has proved the due
execution of the Will, Ex.A9 by Munisamy Chettiar.
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(i) The signature of the testator may be very
shaky and doubtful or not appear to be his usual
signature.
(vii) The Will did not see the light of the day
for long.
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Madhukar D.Shende v. Tarabai Aba Shedage ((2002) 2
SCC 85 and Sridevi v. Jayaraja Shetty (2005) 2 SCC
784]. Subject to above, proof of a Will does not
ordinarily differ from that of proving any other
document.
34. There are several circumstances which would
have been held to be described (sic) by this Court
as suspicious circumstances:
(i) When a doubt is created in regard to the
condition of mind of the testator despite his
signature on the Will;
(ii) When the disposition appears to be unnatural
or wholly unfair in the light of the relevant
circumstances;
(iii) Where propounder himself takes prominent
part in the execution of Will which confers on him
substantial benefit."
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adversarial proceeding in such cases becomes a
matter of Court's conscience and propounder of the
Will has to remove all suspicious circumstances to
satisfy that Will was duly executed by testator
wherefor cogent and convincing explanation of
suspicious circumstances shrouding the making of
Will must be offered."
19. As stated supra, the Will was attested by five persons and of
all the five attesting witnesses viz., Venkatesan, Govindasamy also
identified the testator before the Sub Registrar. One of the
attesting witnesses viz., Ponnusamy was examined to prove the due
execution and attestation of the Will. It is admitted by PW1 and
PW2, the attesting witness that the attesting witness Ponnusamy is
the sister's son of the first respondent. The other attesting
witnesses are not related to the first respondent and no attempt was
made by the first respondent to examine independent and uninterested
witness to prove the due execution of the Will.
20. Further, the Will contains six pages and the signature of the
testator in each page is not the same and one signature does not
tally with the other signature. It is the specific case of P.Ws.1
and 2 that even after execution of Ex.A9, the testator sold various
properties to PW4 to PW6 and they also were examined, but, the sale
deeds executed by Munisamy Chettiar in favour of PW4 to PW6 were not
marked in court to enable the court to compare the signature of
Munisamy Chettiar found in those sale deeds with that of the
signature of Munisamy Chettiar found in Ex.A9 Will. It is seen from
Ex.A9 that before the Sub Registrar, Munisamy Chettiar alleged to
have signed and that signature put before the Sub Registrar admitting
the execution is different from the signature found in other pages.
According to me, it is very patent to the naked eye that the
signature found in all the six pages and the signature put before the
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Sub Registrar are different and they could not have been signed by
the same person at the same time. The style of writing and the
stroke are entirely different. For example, it is seen from Ex.A9
that Munisamy Chettiar signed in Tamil as 'br/Kdparhkp brl;o'. The
initial 'br' is different in all the six pages and the writings of
'Kdparhkp brl;o' is also different in all the pages. The first letter
'K' is different. In the signature put before the Sub Registrar, the
different stroke of 'K' and 'D' is found.
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the sister's son of the propounder would all lead to the suspicion
that the Will might not have been executed by Munisamy Chettiar while
in a sound and disposing state of mind or the Will might not have
been executed by Munisamy Chettiar. Further, it is admitted by PW1
that in or around the execution of the Will, Munisamy Chettiar had
his fingers in the leg amputated and he was hospitalised. But, PW2,
who happens to be the sister's son of PW1 viz., the first respondent
herein, did not state the physical condition and the treatment taken
by Munisamy Chettiar during the relevant time and he gave answer that
he was not aware of such things or the treatment taken by Munisamy
Chettiar during that time.
In the result, the judgment and decree of the courts below are
set aside. The second appeal is allowed. The suit is dismissed. No
costs.
Sd/-
Asst. Registrar.
/true copy/
ssk.
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To
S.A.No.313 of 2010
KJI(CO)
ABH/15.05.2012
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