The second defendant is the appellant herein.
2. The plaintiff filed O.S.No.39 of 2011 before the District Munsif Court, Ramanathapuram, for partition and separate possession of her 1/3rd share in the suit schedule properties. She further prayed for permanent injunction, as against the defendant, not to alienate or encumber the suit schedule properties till the plaintiff gets her 1/3rd share in the suit schedule properties. The trial Court decreed the suit as prayed for. The second defendant filed A.S.No.43 of 2013 before the Sub Judge, Ramanathapuram. The learned Subordinate Judge dismissed the appeal. As against the same, the present Second Appeal has been filed by the second defendant. 2/11 https://www.mhc.tn.gov.in/judis S.A(MD)No.201 of 2020
3. The plaintiff has contended that the suit schedule properties were jointly purchased by the plaintiff's father Ayarpadikonar and his brother Ramasamy Konar on 08.08.1945 under Exhibit A1. The said Ramasamy Konar had died leaving without any issues and hence, the plaintiff's father became the absolute owner of the suit schedule properties. The plaintiff further contended that her father Ayarpadikonar had executed a registered Will on 20.12.1961 under Exhibit A2, bequeathing the entire suit schedule properties in favour of the plaintiff's mother Poomayil Ammal.
4. The plaintiff further contended that the plaintiff's mother Poomayil Ammal had executed a registered settlement deed on 17.10.2001 under Exhibit A3 in favour of the plaintiff and the defendants 1 and 2. In view of the said settlement deed, the suit schedule properties jointly belonged to the plaintiff and her sisters, defendants 1 and 2. The plaintiff is entitled to 1/3rd share of the suit schedule properties. The second defendant attempted to grab the entire suit schedule properties by mutating the revenue records in her name. Thereafter, the plaintiff had submitted the settlement register 3/11 https://www.mhc.tn.gov.in/judis S.A(MD)No.201 of 2020 before the Thasildar and the patta was converted into a joint patta. Hence, the present suit for partition.
5. The defendants filed a written statement admitting that Ayarpadikonar is the absolute owner of the suit schedule properties. But contended that since his daughters were minors, the Will was executed by him in favour of his wife on 20.12.1961. Hence, Poomayil Ammal will not get any title to the suit schedule properties. Under the said Will, the right to administer and maintain the property alone was granted in favour of Poomayil Ammal. Hence, Poomayil Ammal did not have any right to execute the settlement deed under Exhibit A3. The plaintiff is not entitled to any share in the suit schedule properties.
6. The trial Court after perusal of Exhibit A2 Will, arrived at a finding that Ayarpadikonar had bequeathed the suit schedule properties only to his wife Poomayil Ammal and he has not bequeathed the suit schedule properties in favour of the defendants 1 and 2. The trial Court also arrived at a finding that since Poomayil Ammal is the absolute owner of the suit 4/11 https://www.mhc.tn.gov.in/judis S.A(MD)No.201 of 2020 schedule properties as per Exhibit A2 Will, she is entitled to execute Exhibit A3 settlement deed in favour of his three daughters namely, the plaintiff and the defendants 1 and 2. Though the second defendant had contended that at the time of execution of Exhibit A3 sale deed, Poomayil Ammal had lost her memory and eye-sight, she has not proved the same. Hence, the trial Court proceeded to grant a decree as prayed for.
7. The First Appellate Court after independent analysis of the documentary evidence and the pleadings arrived at a finding that Exhibit A2 Will has been executed by Ayarpadikonar only in favour of his wife Poomayil Ammal and based upon the said Will she has executed Exhibit A3 settlement deed in favour of all his three daughters namely, the plaintiff and the defendants 1 and 2. Though the second defendant has alleged some fraud in execution of Exhibit A3 settlement deed, the second defendant has not discharged the burden of proving the said fraud. The First Appellate Court further found that the second defendant has simply denied all the questions put to her in the cross-examination with regard to Exhibit A3 settlement deed. The First Appellate Court also arrived at a finding that 5/11 https://www.mhc.tn.gov.in/judis S.A(MD)No.201 of 2020 Exhibit A3 settlement deed is true and valid and dismissed the appeal. As against the same, the present Second Appeal has been filed.
8. The learned Counsel for the appellant had contended that Exhibit A2 Will was not executed in favour of Poomayil Ammal. She was only a guardian on behalf of defendants 1 and 2 to take care of the schedule mentioned properties. Hence, she did not have any capacity to execute Exhibit A3 settlement deed in favour of her three daughters.
9. The learned Counsel for the appellant further contended that when the Will was executed by Ayarpadikonar, the plaintiff was not even born and hence any reference about the legal heirs in Exhibit A2 Will, cannot include the plaintiff. He further contended that even assuming that Exhibit A1 Will has been executed in favour of Poomayil Ammal, when the plaintiff was not even born on the said date, she is not entitled to any share in the suit schedule properties. Hence, he prayed for admitting the Second Appeal. 6/11 https://www.mhc.tn.gov.in/judis S.A(MD)No.201 of 2020
10. I have carefully considered the submissions made on the side of the appellants.
11. A careful perusal of Exhibit A2 Will will clearly indicate that the Will has been executed by Ayarpadikonar in favour of his wife Poomayil Ammal. There is no reference that the said document has been executed in favour of Poomayil Ammal only as a guardian of defendants 1 and 2. Hence, Poomayil Ammal has got absolute title to the suit schedule properties under Exhibit A2 Will after the death of Ayarpadikonar.
12. The next contention of the learned Counsel for the appellant is that on the date when Exhibit A2 Will was executed by Ayarpadikonar, he had only two daughters namely, the defendants 1 and 2. Any reference in the Will about the legal heirs will only being mean and include the defendants 1 and 2 alone. The plaintiff was born after the execution of the Will. Ayarpadikonar was alive till 1990. But he has not chosen to cancel the Will or execute a codicil. Hence, the plaintiff is not entitled to a share in the suit schedule properties which belong to Ayarpadikonar. Section 111 of the 7/11 https://www.mhc.tn.gov.in/judis S.A(MD)No.201 of 2020 Indian Succession Act reads as follows:
"111.Survivorship in case of bequest to described class.- Where a bequest is made to simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator's death".
13. A careful reading of the above said provision will indicate that where a bequest is made in favour of the class of persons, the bequeathed property will go only to such who are alive at the testator's death. In the present case, the Will has been executed by Ayarpadikonar conferred absolute right upon her wife Poomayill Ammal only. Incidentally, he has referred that it should be enjoyed by his legal heirs also. The bequest is not directly in favour of his children. Even assuming that the bequest has been made in favour of his children, the children of Ayarpadikonar had formed a described class of persons. In the said class of persons, whoever is alive on the date of death of the testators will be entitled to a share. Hence, it is evident that the persons who formed the class is to be decided only on the 8/11 https://www.mhc.tn.gov.in/judis S.A(MD)No.201 of 2020 date of death of the testator and not on the date of execution of the Will. In the present case on the date of death of the testator, the plaintiff was alive along with the defendants 1 and 2. Hence, the contention of the learned Counsel for the appellant that the plaintiff is not entitled to a share is not legally sustainable.
14. In view of the above said discussion, I do not find any question of law much less a substantial question of law for admitting the above Second Appeal. Therefore, the Second Appeal stands dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
9/11 https://www.mhc.tn.gov.in/judis S.A(MD)No.201 of 2020 To
1.The Subordinate Judge, Ramanathapuram, Ramanathapuram District.
2.The District Munsif Court, Ramanathapuram.
3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
10/11 https://www.mhc.tn.gov.in/judis S.A(MD)No.201 of 2020 R.VIJAYAKUMAR,J.
btr Judgment made in S.A(MD)No.201 of 2020 09.03.2022 11/11 https://www.mhc.tn.gov.in/judis