BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 02.011.2021

PRONOUNCED ON: 26.04.2022

CORAM:

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

S.A.(MD)No.289 of 2007

Thulasiammal (died)                       … Appellant  / 1^st Respondent / Plaintiff

2. Senthamarai
3. Venkatesh
4. Sathiyabama
5. Chandrasekaran Nammalwar … Appellants

(Appellants 2 to 5 are brought on record as Lrs of the deceased

sole appellant vide order dated 20.10.2021 made in

C.M.P.(MD)Nos.6801, 6802 & 6803 of 2021)

-Vs-

1.Pandarasamy

2.Ramalakshmi Ammal (died)

3.Dhanalakshmi     …Respondents 1 to 3 / Appellants /  Defendants 1, 2 & 4

4.Selvaraj         … 4^th Respondent  / 2^nd Respondent /  3^rd Defendant

PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code, against the Judgment and decree dated 07.09.2001 made in A.S.No.5 of 2000 on the file of the Subordinate Judge, Virudhunagar in reversing the judgment and decree dated 30.11.1999 made in O.S.No.208 of 1997 on the file of the District Munsif Court, Virudhunagar .

For Appellants       : Mr.G.Prabhu Rajadurai

for Mr.P.Adhimoola Pandian

For R1                      : Mr.S.Srinivasa Raghavan

for Mr.M.Jothibasu

For R3                : No appearance

(R2-died & R4-given up)

 JUDGMENT

The plaintiff in O.S.No.208 of 1997 on the file of the District Munsif

Court, Virudhunagar is the appellant in this second appeal.

2. The suit was for partition of 1/5^th share in the suit properties. The case of the plaintiff is that the suit properties originally belonged to her father Ramasamy Naicker.  The first defendant Pandarasamy is the plaintiff’s brother.  The other three defendants are her sisters.  Ramasamy Naicker passed away in the year 1987 itself.  The mother of the parties also later passed away.  Even though the plaintiff is having 1/5^th share in the suit properties, her brother is declining to part with the plaintiff’s share. Therefore, the suit came to be laid.  The first defendant / brother of the plaintiff filed written statement controverting the plaint averments.  The first defendant stated that the suit properties are not the ancestral properties but the self acquired properties of Ramasamy Naicker.  Ramasamy Naicker had executed a Will dated 24.05.1978 in favour of the first defendant. Since the properties have already been bequeathed in favour of the first defendant, the suit for partition is not maintainable.  Based on the divergent pleadings, the trial court framed the necessary issues.  The plaintiff examined herself as P.W.1 and marked Ex.A1 to Ex.A5.  The first defendant examined himself as D.W.1.  A person said to be an attestor of the suit Will

was examined as D.W.2.  Ex.B1 to Ex.B27 were marked.  After

consideration of the evidence on record, the trial court passed preliminary decree as prayed for granting 1/5^th share to the plaintiff by judgment and decree dated 30.11.1999.  Challenging the same, the first defendant as well as the two sisters filed A.S.No.5 of 2000 before the Sub Court, Virudhunagar.  By the impugned judgment and decree dated 07.09.2001, the decision of the trial court was reversed and the appeal was allowed and the suit came to be dismissed.  Challenging the same, this second appeal came to be filed.  The second appeal was admitted on 26.03.2007 on the following substantial questions of  law:-

“1. Whether the lower appellate court erred in law and misdirected itself in non-suiting the appellant by holding that she is not entitled to any share in the suit properties on the basis of Ex.B27-Will, when the first respondent has failed to prove the said Will as per Section 63(c) of the Indian Succession Act, 1925?

(2) Whether the lower appellate court is correct in shifting the burden upon the appellant herein to prove that D.W.2 is not the same person who had attested Ex.B27-Will by setting aside the findings of the trial court, when in law the burden is upon the first respondent to prove the same? ”

During the pendency of the second appeal, Thulasiammal / appellant passed away and her children were brought on record.

3. The learned counsel appearing for the appellant reiterated the contentions set out in the memorandum of grounds. He pointed out that the propounder of the Will has the burden to prove the same.  In this case, D.W.2 was examined as attestor of Ex.B27-Will.  But then, his identity was specifically challenged.  The learned counsel for the appellant would contend that it has not been established that D.W.2 who deposed before the Court was actually the very same person who also attested the Will.  This burden cannot be cast on the plaintiff.  Therefore, the learned counsel for the appellant submitted that it must be concluded that the suit Will had not been proved in the manner known to law.  He called upon this Court to answer the substantial questions of law in favour of the appellant and set aside the impugned judgment and decree and restore the decision of the trial court.
4. Per contra, the learned counsel appearing for the respondents submitted that the suit Will has been duly proved as per law by examining

D.W.2.  He also would point out that the first defendant was born with four sisters.  One of the sisters had passed away and the fourth defendant was her son.  All the other defendants sailed with the first defendant.  In fact, two of the sisters even joined the first defendant in filing the first appeal. The suit Will was executed in the year 1978, While Ramasamy Naicker passed away in the year 1987.  It was the first defendant who took care of his father and therefore, the father chose to execute the suit Will in his favour.  The learned counsel would also draw my attention to the fact that the mother of the parties had executed a gift deed in favour of the plaintiff and the suit property was sold by the plaintiff in favour of the third party under Ex.B1 dated 18.06.1992.  He would point out that the property covered under Ex.B1 measured 3 acres and 48 cents.  He therefore submitted that there is nothing suspicious above bequeathing the property in favour of the first defendant.  He called upon this Court to sustain the impugned judgment and decree.

5. I carefully considered the rival contentions and went through the evidence on record. The only question that calls for consideration is whether the first defendant had proved Ex.B27 by examining D.W.2.  It is true that while cross-examining D.W.2,  a suggestion was put that he was not the Varadharajan who had signed as an attestor in Ex.B27. The learned counsel appearing for the appellant would submit that the burden lay on the first defendant was that D.W.2-Varadharajan was the same Varadharajan who had attested Ex.B27-Will also.
6. I am not persuaded by the contentions of the learned counsel appearing for the appellant. The learned counsel appearing for the respondents drew my attention to the decision of the Rajasthan High Court reported in 1955 0 Supreme (Raj) 121 (Board of Revenue, Shyamlal & Roop Naratn  Tiji).  It was held in the said decision that in law, there is a strong presumption against fraud and impersonation and the identity of the deponent can as well be presumed by the Court.  Here, in this case, D.W.2 appeared before the Court in response to the court summons.  The court summon was addressed to “Varadharajan” Warden, Backward Classes Hostel, Ranipet, Vellore District.   He was aged around 46 years.  He also categorically stated that his  native place was Meesalur village.  The parties also hailed from the very same region.  Merely because, he did not bring his identity card, that would not by itself indicate that he was committing impersonation.  If really, the plaintiff felt that impersonation was being committed, she should have taken further steps. Mere putting  suggestion in the cross examination is not sufficient to discharge the burden cast on the plaintiff.  The first appellate court rightly approached the issue and held that the suit Will was duly proved by the first defendant.  I answer the substantial questions of law against the appellant.  I confirm the decision of the first appellate court.  The second appeal is dismissed.  No cost.

22.04.2022

Internet : Yes/No Index     : Yes/No rmi

To

1.The  Subordinate Judge, Virudhunagar.

2.The District Munsif Court, Virudhunagar.

Copy To

The Section Officer,

Vernacular Records,

Madurai Bench of Madras High Court,    Madurai.

  G.R.SWAMINATHAN.J.,

                                                             rmi

Judgment made in

S.A.(MD)No.289 of 2007

26.04.2022