The unsuccessful plaintiff is the appellant herein. The trial court accepted the testamentary dispossession of the suit property against the plea of intestate. Hence, this appeal.
2. Pattu, the plaintiff/appellant in her plaint contented that, her father S.R.Chinnia Gowder died intestate on 11.01.1992 in the hospital after brief illness. She is the daughter of his first wife Rajammal. The first defendant Krishnammal @ Singari is his second wife. The second defendant is the daughter of the first defendant. The third to fifth defendants are her sons. The properties described in the suit schedule are the absolute properties of her father. She is entitled for 1/6 share in 'A' schedule property. The 'B' schedule property is the common property of her father S.R.Chinnia Gowder and his brother S.R.Ramasamy Gowder, who died issueless and intestate. The 6th defendant is the wife of S.R.Ramasamy Gowder. So, in B schedule property, the plaintiff is entitled to 1/12 share. Pending suit, the 2nd defendant Kanaka died. So, her husband was brought on record as her legal representative and arrayed as 7th defendant. The 6th defendant Tmt.Saraswathi ammal, W/o S.R.Ramasamy Gowder died issueless. The defendants 3 to 5 are her legal representatives.
3. The case of the plaintiff is that, though her father married the first defendant as his junior wife and living with her and her children born through her, her father was fond of her and was in contact with her till 1986. Off late, the defendants 2 to 5 successfully prevented her father from having contact with her and she was not even informed by the defendants about her father's demise when she come to know about the death of her father, she caused notice on 25.01.1992 to the defendants requesting them not to alienate the property till her share is apportioned. The defendants 3 to 5 replied denying share to her in the property and contented that her father S.R.Chinnia Gowder has bequeathed all his properties to them through a Will dated 3.01.1992, a day before he was taken to hospital.
4. According to the plaintiff, she learnt that her father S.R. Chinnia Gowder was afflicted with continuous diarrhoea, vomiting and giddiness for about two to three days prior to 04.01.1992. On 04.01.1992 along with the above symptoms he had chest pain and was admitted in the hospital and he became unconscious. Despite medical attendance, he died on 11.01.1992 due to cardiac arrest. Therefore, the contention of the defendants that her father executed a Will, when he was in sound disposing state of mind is false and untenable. After exchange of notices, negotiations with the help of mediators was held to divide the estate of S.R.Chinnia Gowder amicably, but it ended in futile.
5. The defendants 1 and 2, who are the junior wife and daughter of the late S.R.Chinnia Gowder filed written statement admitting the relationship but, denying the other averments such as the plaintiff's claim of cordial relationship with her father S.R.Chinnia Gowder. According to these defendants, the plaintiff and her husband were throughout hostile towards late S.R. Chinnia Gowder, despite his best efforts to have cordial relationship. The relationship severed twenty years before the death of S.R.Chinnia Gowder. The allegations made about S.R.Chinnia Gowder health are denied. His faculties were intact and he was conscious of what he was doing. In a sound disposing state of mind, he executed a Will on 03.01.1992 bequeathing his properties in favour of his sons absolutely. Even they were not given any property in the Will, except obligation of maintaining the first defendant by her sons who are legatees under the Will. The defendants 1 and 2 are not necessary parties to the suit. The mediation talk averred in the plaint is denied. The plaintiff was never in joint possession of the property, so the valuation of the properties and the court fees paid thereon are totally incorrect.
6. The defendants 3 to 5, filed separate written statement wherein they denied the averment that their father died intestate. According to them, S.R.Chinnia Gowder while he was in sound disposing state of mind executed Will dated 03.01.1992 bequeathing all his properties in favour of the defendants 3 to 5. Under the Will they alone are entitled to the properties. The plaintiff having been disinherited by Will, cannot claim any share in the properties of her father. The allegations that S.R. Chinnia Gowder had no mental or physical capacity to execute the Will and that the Will is fabricated document, are denied as false and the allegations that two or three days before being admitted in the hospital S.R.Chinnia Gowder was afflicted by diarrhoea, vomiting and giddiness are false.
7. According to the defendants 3 to 5, on the evening of 04.01.1992, S.R.Chinnia Gowder developed low blood pressure and hiccups. At about 9.00 p.m., he was admitted in the hospital and was recouping in the hospital. On 11.01.1992, he had cardiac arrest and died suddenly. Though he was aged at the time of death, he had his faculties intact and he was conscious of what he was doing. The existence of movables mentioned as Item No. 4 of 'A' schedule of the plaint and the existence of jewels and other movables are only the fertile imagination of the plaintiff. They denied the averment of joint possession and later mediatory process alleged in the plaint.
8. The Third defendant in his additional written statement, contented that the 'B' schedule properties were settled in favour of the 4th and 5th defendants by their paternal grandmother Chikkammal on 11.07.1959. The settlement was challenged by the 6th defendant in O.S.No.129/1981 on the file of the Sub-Court, Gobichettipalayam and the same was dismissed and later confirmed in S.A.No.895/1990 and S.A.No.1064/1991 by High Court. The 'B' schedule properties are the absolute properties of the defendants 4 and 5. The plaintiff is not entitled for a share in the said properties. Inclusion of 'B' schedule properties covered under the settlement deed dated 11.07.1959 is without basis.
9. Based on the above pleadings, the trial Court framed the following issues:-
(1)Whether the plaintiff entitled to the decree for partition as prayed for?
(ii)To what relief?
10. Further, the trial Court framed the following additional issues on 21.07.2003:-
(i) Whether the plaintiff is entitled to any right of share in the properties covered in the settlement deed dated 11.07.1989 executed by Mrs.Chikkammal in favour of defendants 3 to5 ?
(ii) Whether the defendants 3 to 5 are entitled to claim right in the Will dated 03.01.1992?
11. Before the trial Court, the plaintiff and two other witnesses were examined as P.W-1 to P.W-3. The third defendant and two others witnesses were examined as DW-1 to DW-3. On the plaintiff side, Ex.A-1 to Ex.A-7 were marked. On behalf of the defendants, Ex.B-1 to Ex.B-16 were marked .
12. The trial Court after analysing the evidence relied on either side held that in so far as the 'B' schedule properties are concerned, they were the properties of Chikkammal. She has settled the properties in favour of her grand sons defendants 4 and 5. The dispute regarding the validity of the settlement arose between the 6th defendant and the defendants 3 to 5 ended in favour of the defendants 3 to 5, confirming the settlement made in favour of them. That fact is established by the defendants through Ex.B-12 to Ex.B-15. Therefore, the plaintiff has no right in the 'B' schedule properties and is not entitled to get any share.
13. In respect of 'A' schedule properties, the trial Court held that, the defendants have informed the plaintiff about the existence of Ex.B-7-Will dated 03.01.1992 in the reply notice Ex.A-3 dated 07.02.1992, which proves the genuineness of the Will. The reason for disinheritence of the plaintiff is explained in the Will itself. The execution of the Will is proved through the attesting witness examined as D.W.3. The suspicion about the physical and mental condition of the testator at the time of execution of the Will is not established through D.W-2 or any other witnesses relied by the plaintiff. Therefore, there is no reason to doubt about the execution of the Will bequeathing the suit schedule properties to the defendants 3 to5. Hence, it is valid.
14. Aggrieved by the dismissal of the suit, the present appeal is preferred.
Point for determination:-
1. Whether the trial court proper in holding the execution of the Ex B-7 proved, without examining the scribe-cum- attesting witness and can it be considered as genuine in the absence of medical records to show the real health and mental condition of the testator on 03.01.1992 the date of execution of the will?
2. Whether the circumstances claimed to be suspicious by the appellant is sufficient to hold the will as ingenuine?
15. Decision:
The learned counsel appearing for the appellant submitted that the Will is shrouded with the following suspicious circumstances.
(i) The Will was not produced at the earliest. Even after the direction of the Court to produce the document, the defendants did not produce the Will. Only after filing the petition to strike off the pleadings, the defendant fabricated the Will in connivance with one Ravindran an Advocate Clerk at the Advocate Office. No plausible explanation put forth by the defendants for the belated production of the Will. Hence,adverse inference under Section 114 of Indian Evidence Act,1872 ought to have drawn by the trial Court.
(ii) In Ex.B-7, the said Advocate Clerk by name Ravindran is both the scribe and one of the attesting witness. Though he is the most competent witness to speak about the execution of the Will, the defendants did not examine the said scribe-cum- witness. Non examination of the material witness fatal to the case of the defendants. In support of this submission, the judgment of the Hon'ble Surpeme Court reported in Enuga Lakshmamma -vs Vennapuse Chinna Malla Reddy [1985 (2) SCC 100 ] was relied.
(iii) Admittedly, under Ex.B-7, the plaintiff is disinherited. When the Will itself being a forged and fabricated document, the reasons found in Ex.B- 7 cannot be taken note. In the absence of special reasons for disinheriting his daughter born through the first wife, the Will ought not to have been held as genuine and validly proved.
(iv) ) It is an admitted fact that the propounders of the Will actively participated in execution of the Will. The Will is executed in the presence of propounders around him, when the testator is not in sound mental state. Such circumstances should be considered as a suspicious circumstances. To buttress this point, the following passage in the judgment of this Court in Govindan Chettiar (died) -vs- Akilandam alias Seethalakshmi and 24 others reported in 1997- 3LW 673 was cited. “In cases where the legatee has taken active part in the execution of the Will and the entire asset is also taken by him, better evidence is required regarding execution of the Will.”
(v) The failure of the defendants to produce the medical records of S.R.Chinnia Gowder is fatal to the defendants. The defendants have not established the fact that at the time of executing the Will, the testator was in sound disposing state of mind. In this connection, the learned counsel cited the judgment of the Hon'ble Supreme Court reported in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others [AIR 1968 SC 1413], wherein it is observed as under:-
“......Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof ”
(vi) The signature in the Will is not the signature of S.R.Chinnia Gowder. While the very genuineness of the signature is disputed, the plaintiff ought to have proved the genuineness of it by comparing the disputed document with the aid of admitted document. The plaintiff failed to carry out this exercise to discharge his burden.
(vii) Whether the testator affixed his signature, after it was read over to him and after he fully understood the content of Ex.B-7 is not spoke by neither the propounder of the Will nor the attesting witnesses, who were examined as D.W.1 and D.W.3 respectively. The Execution of the document does not mean mechanical act of signing the document or getting it signed, but an intelligent appreciation of the contents of the document and signing it in token of acceptance of those content.
16. In this context, the learned counsel appearing for the appellant referred the following observation of the Hon'ble Supreme Court in the judgment reported in Dhannulal and others v. Ganeshram and another [2015(12) SCC 301], wherein paras 18 and 19 reads thus:
“18. It is evident from the findings recorded by the High Court in the paragraph referred to herein above that the will suffers from serious suspicious circumstances. The execution of a document does not mean mechanical act of signing the document or getting it signed, but an intelligent appreciation of the contents of the document and signing it in token of acceptance of those contents. “ 19.Proof of a Will stands in a higher degree in comparison to other documents. There must be a clear evidence of the attesting witnesses or other witnesses that the contents of the Will were read over to the executant and he, after admitting the same to be correct, puts his signature in presence of the witnesses. It is only after the executant puts his signature, the attesting witnesses shall put their signatures in the presence of the executant.”
17. The propounder of the Will is bound to clear all the suspicious circumstances. The defendants have not cleared any of the suspicious circumstance pointed above. Inspite of that, the trial Court erroneously held that the Will is proved in manner known to law, though on fact it was not.
18. As a counter submission, the learned counsel appearing for the respondents submitted that, the relationship between the plaintiff and her father strained long back and never reconciled. Ex.A-4 letter of S.R.Chinnia Gowder to the plaintiff, dated 24.09.1969 and Ex.B-8 letter of plaintiff's husband Krishnamoorthy to S.R.Chinnia Gowder, dated 27.09.1969 reveals the animosity prevailing between them. There is no evidence let in by the plaintiff that her father was fond of her and having contact with her and her husband after 1969. By inclusion of properties in the 'A' schedule which were already alienated by S.R.Chinnia Gowder himself and B schedule properties which was settled in favour of defendants 3 to 5 by their grand mother Chikkammal are sufficient proof to show that the plaintiff was not in contact with her father for years.
19. The existence of the Will Ex.B-7 was informed to the plaintiff as early as 9.02.1992. The evidence of D.W.2 regarding non availablity of medical records due to change of management and Ex.B- 16 the letter of the new management in this regard is not controverted by the plaintiff. The doubt in this regard has been dispelled in the manner required under the law. D.W-3 the attesting witness to the Will has deposed clearly how the Will was executed in his presence. There is no circumstances in the execution of the Will to suspect by any reasonable person and what are all alleged to have been suspicious have been dispelled through documents and oral testimony.
20. The scrutiny of records in this case reveal that the plaintiff has taken out an interlocutory application I.A.No.321/2002, dated 29.01.2002 to direct the respondents to produce the Will dated 03.01.1992 for comparison with the letter of S.R.Chinnia Gowder written in the year 1969. Pending disposal of this application, the plaintiff has taken out another application on 07.03.2002 to strike off the defence since the defendants failed to produce the Will even after lapse of 10 days. The defendants in their counter has questioned the maintainablity of the application as well as the bonafide of the plaintiff to refer the Will for handwriting experts to compare it with the alleged letter of S.R.Chinnia Gowder, which is not in possession of the defendants. The application taken out 10 years after filing the suit lacks bonafide. However, on 26.03.2002 along with memo the original Will in a sealed cover has also been submitted to the Court with request to the Court to keep it in safe custody. The said cover containing the Will has been taken out in the open Courts in the presence of both the counsels and marked as Ex.B7, when the third defendant was examined as D.W-1 on 23.07.2003.
21. If the plaintiff was still had a doubt about the existence or about the genuineness of the Will, she could have revived her request for comparison of the disputed signature with the admitted signature immediately. The plaintiff has not taken any steps in this direction.
22. As seen from the evidence, the existence of the Will has been disclosed to the plaintiff as early as 07.03.1992 through reply notice Ex.A-3. The suit was filed on 1.03.1993. By filing I.A.No.196/2002 on 29.01.2002, the plaintiff for the first time has expressed her intention to compare the Will with admitted document executed by S.R.Chinnia Gowder. Though the Will was produced by the defendants as early as on 26.03.2002, the plaintiff has not taken any steps to revive the prayer to sent the documents to expert for comparison. No steps taken by the plaintiff to prove that the Will is not genuine by producing contemporaneous document admittedly executed by the testator enabling the Court for comparison. Whereas, on the part of the defendants they have examined D.W-3-the attesting witness to the document and has established the execution of the Will.
23. While the positive assertion of execution of Will has been established by the defendants, no attempt is made by the plaintiff to prove the negative that her father was not in good mental state at the time of the execution of the Will and the signature in the Will is not the signature of her father. Mere suspicion based on surmises and on information of unknown person, cannot be a valid ground to disbelieve the Will. Doubt of a doubting Thomas cannot be a ground to disbelieve a testamentary document duly executed and proved in the manner know to law.
24. For proof of a document, there may be more than one witnesses like the scribe of the Will in this case. When one of the attesting witness is examined and subjected himself to be cross examined, mere non examination of the other attesting witness, who happen to be the scribe also, will not render the Will duly executed an ingenuine document. Under the evidence Act, the value of the evidence is appreciated not by quantity but, by quality. No law or judgment subscribes that when the scribe of the Will is one of the attesting witness, he is the best witness and he alone is competent to depose about the execution of the Will.
25. The purpose of executing Will is to interfere with the normal line of succession. In this case, it is not only the plaintiff but also the defendants 1 and 2, who are junior wife and the daughter born through her are dis-inherited. The Ex.B-7-Will is not without reason for the said disinheritance. The testator has explicitly stated that, his daughters, the plaintiff and the second defendant are married and well settled and he has given enough sridhana during their marriage. Further, he has recorded the prevailing animosity between him and the plaintiff's family.
26. The allegation of the plaintiff is that she heard that her father was not keeping in good health and mental state of mind before being admitted in the hospital. The said averment itself is not based on personal knowledge but through some third party. The attempt to get the hospital records could not fructify because of change of management as seen from Ex B16. DW-2, who has deposed on behalf of the hospital was not even suggested in the cross examination that the content found in Ex.B-16 is false.
27. From the evidence, it could be seen that, the Will was executed on 03.01.199. The testator was admitted in the hospital at the next day. He died in the hospital after a week. The plaintiff was informed about the existence of the Will as early as 07.02.1992. From the plaint, it is evident that the plaintiff had not believed the execution of Will by her father and had come to know that her father was not in good state of mind, while the Will was prepared. It is also evident that the plaintiff's husband is a law graduate.
28. That being the factual scenario a bald averment that she suspects the execution of Will without an iota of evidence, is it suffice to throw out the Will neglecting the evidence of the attesting witness D.W.3, who has been asked by the testator to come to his son's house on the afternoon of 3rd January 2002 and be a witness to his Will. He has deposed that he saw the preparation of the Will by the scribe at the instance of the testator. He saw the testator signing the Will and he thereafter, signed the Will and others in the house saw him signing.
29. In judgment of the Hon'ble Supreme Court reported in Sridevi and others v. Jayaraja Shetty and others [(2005) 2 Supreme Court Cases 784], wherein Paragraph Nos.11 and 14 read as under:
“11.It is well settled propostition of law that mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. Proof in the either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances has to be judged in the facts and circumstances of each particular case ”
14.The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged ”
30. The plaintiff has commenced the litigation with her notice Ex.A2 dated 25.1.1992 on the premises that her father S.R.Chinnia Gowder died intestate and she being the daughter of his senior wife entitled for share in the property. It is pertinent to note that in the said notice she has not specified the exact share she claims or details of properties upon which she claims share.
31. In the notice Ex.A2 property is mentioned as under:
“Description of Property”
“ The properties referred to in both of the partition deed dated 22.02.1955 and registered as document No.186 of 1955 of Book-I, Sub Registrar's Office, Sathyamanagalam and also the house in an extent of 3/4th cents in Dhandumariamman Koil West Street, Ward No.5, Sathyamangalam under assessment No.274.”
32. Whereas in the plaint, the plaintiff has given the description of property as under:
“Description of Property”
“ m a pl ; lk; 1
Schedule 'A'
nfhaKj;Jhh; hpoL nfhaKj;Jhh; rg;hpoL nkw;go lt[d; u';nf ft[lh; tPjpapy; nky;g[uk;
rpnuzpapy; giHa thh;L 6. g[jpa thh;L 21.
,jpy; yp';nf ft[z;lh; filf;Fk; tlf;F/nghnu ft[z;lh; tPl;Lf;Fk; fpHf;F. ,ila;h; tPjp fpHnky; nuhLf;Fk; bjw;F. bjd;tly; tPjpf;Fk; nkw;F. ,jd; kj;jpapy; fpHf;F thry; tpy;iyf;fil m';fzk; 5 fjt[ epyt[ fl;Lf; nfhg;g[ Kd; thry; rfpjk; (giHa fjt[ vz;/211. thh;L 6 g[jpa fjt[ be:21-212. 213) jw;nghija fjt[ vz;fs;;; 975?976. o/v!;/be 740?741-284 & 286/ ,J nfhaKj;Jhh; khefuhl;rpf;F vy;iyf;Fl;gl;lJ/ ,jd; kjpg;g[ U:/20.00.000-?/ mapl;lk; 2 :
gpd;;dk; nkw;go u';nfft[z;lu; tPjpapy; nkw;g[uk; rpnuzpapy; filf;Fk; bjw;F. rpf;fa;a ft[lu; gpwtilf;Fk; fpHf;F. rpd;idaeha[L tPl;Lf;Fk; tlf;F. bjd;tly; nuhl;Lf;Fk; nkw;F. ,jd; kj;jpapy; fpHf;F thry; tpy;iy tPL. m';fzk; 3 vjpu;g[wk; jhu;R fl;olKk; fjt[ epyt[ fl;Lf; nfhg;g[ rfpjk;/ giHa fjt[ vz; 16-548 g[jpa fjt[ vz;/21-210. 211. jw;nghija fjt[ vz; o/v!;/be: 742 ,jpy; ,Uf;Fk; yl;Rkp muit bkrpd;fs; tifad ,jd; kjpg;g[ U:/7.35.000-?/ mapl;lk; :3 <nuhL upoL rj;jpak';fyk;. rg;upoL nfhgpbrl;oghisak; jhYf;fh. rj;;jpak';fyk;. fpuhkj;jpy; giHa frbe:345. g[jpa f/r/be:42. g[";ir Vf;fu; 10/10 ,jpy; bghJtpy; rupghjp 5/05/ ,jw;F brf;Fge;jp:
f/r/42y; gHdprhkp kidtp kzp/ e";rg;gd; ghf';fSf;Fk; tlf;F. f/r/43-2 yp';fk;khs; ghfj;jpw;Fk; bjw;F: f/r/41 thup g[wk;nghf;Ff;Fk; nkw;F. f/r/74-1 g[wk;nghf;Ff;Fk; fpHf;F. ,jd; kjpg;g[ U:/1.00.000-?
mapl;lk; :4 Moveable j';feiffs;:
fhRkhiy ? 30 gt[d; tisay;fs; (6) ? 12 gt[d;
t';fpfs; ? 8 gt[d;
xl;oahdk; ? 20 gt[d;
,ul;ilr;r';fpyp ? 10 gt[d;
bts; sp g; ghj;jpu';fs;
lk;su; ? 24 F';Fkr;rpkpH; ? 2 jl;Lfs; ? 6 re;jdngsh ? 2 fpd;d';fs; ? 6 gpj;jis ghj;jpu';fs; ? 200 brg;g[ ghj;jpu';fs; ? 100 ,Uk;g[ ghj;jpu';fs; ? 3 ku gPnuhf;fs; ? 3 kjpg;g[ Rkhu; ? U:/15.000 gp brl; a{y; :
(V) <nuhL. upo. rj;jpak';fyk; rg;upoL rj;jpak';fyk; Kdprpgy; vy;iyf;Fl;gl;l tlf;Fg; ngl;ilapy; Kd;g[ ft[z;lu; tPjp. jw;nghJ jz;Lkhupak;kd; nfhtpy; tPjp?2 kzpad; yp';nf ft[z;lu; tPl;Lf;F tlf;F. bjd;tly; nuhl;Lf;Fk;?fpHf;F. yl;Rkpjhak;khs; tPl;Lf;Fk; bjw;F. rpd;dnghad; tPl;Lf;Fk; nkw;F. ,jd; kj;jpapy; tlf;F thry; 3 m';fz tpy;iy tPL ,Ue;J jw;nghJs;s 1 \ brd;l; fhypaplk;? ,jd; kjpg;g[?U:/50.000-?
(g)gpd;Dk; nkw;go hpoL rg;hpoL rj;jpak';fyk; Kdprpgy; vy;iyf;Fl;gl;l tlf;F ngl;ilapy; Kd;g[ bfhiuah; tPjp. jw;nghJ jz;L khhpak;kd; nfhtpy; nkw;F tPjpapy; / brd;dpag;g ft[z;lh; tPl;Lf;Fk; tlf;F. ky;iyaft[z;lh; tPl;Lf;F fpHf;F. bjhe;jpfhhp tPl;Lf;Fk; bjw;F. bjd;tly; re;Jf;Fk; nkw;F.
,jd; kj;jpapy; cs;s bjw;F thry; tpy;iy tPL fjt[ epyt[ fl;Lf;nfhg;g[k; Kd; thry; gpwtil nre;Jfpzh; g{uht[k;/ nkw;go tPl;od; giHa fjt[ vz; 5/144 /g[jpafjt[ vz; 6/123, nkw;go tPl;od; KG mst[ ePsk; 35 mo. Mfyk; 37 mo MFk;/ ,jd; kjpg;g[ U: 50.000-// (rp) gpd;dk; nkw;go rj;jpak';fyk; f/r/vz;/268y; e rg;g ft[z;lh; kfd; uhkrhkpft[z;lh; ghfj;jpw;Fk; tlf;F. f/r/222f;Fk; (rz;Kfk; g{kp bjw;F) f/r/269 bjd;tly; g[spk;bfhk;ig nuhl;ow;F bjw;F. f/r/265-2y; gHdprhkp tifawh g{kpfSf;Fk; fpHf;F?,jd; kj;jpay; g[/v5/01 ,jpYs;s fpzh; g{uh ,jd; kjpg;g[ U:/25.000-?/ (o)gpd;Dk; rj;jpak';fyk; fpuhkj;jpy; f/r/vz;///267y; g[/Vf;fh; 9/79 ,jpy; tlg[uk;?259k; be/fhiyf;Fk; tlf;F. 265k; be/fhiyf;Fk; fpHf;F. 268k; be/fhiyf;Fk; bjw;F. 223k; be/fhiyf;Fk; nkw;F. ,jpy; kj;jpapy; g[/Vf;fh; 2/39?,jd; kjpg;g[ U:/25.000-?/ (<)gpd;Dk; nkw;go rj;jpak';fyk; fpuhkj;jpy; giHa f/r/vz;/286V(g[jpa f/r/be/254-1) g[/Vf;fh; 1/09?,jd; kjpg;g[ U:/5.000-? (vg;) gpd;Dk; nkw;go fpuhkj;jpy; giHa f/r/be/287?v) g[jpa f/r/be/254?1) g[";ir Vf;fh; 0/25 ,jd; kjpg;g[ U:/1.200-?/ ($p)gpd;Dk; nkw;go fpuhkj;jpy; giHa f/r/be/285(g[jpa f/r/vz;/284-2) g[";ir Vf;fh; 12/09 ,jpy; f/r/249. 240-3 fhiy g{kpfSf;F bjw;F(fUg;gft[z;lh; tifawh) (fpU!;zrhkp eha[L tifawh) giHa f/r/286V g{kpf;Fk;) f/r/254-1 fhiyfspy; mtpdhrpag;gft[z;lh; kfd;. kzp. fUg;gft[z;lh; kfd; uhkrhkp g{kpfSf;F (,l;nlhpf;Fk;) fpHf;F/ f/r/255-2 fhiyfspy; fhpag;gft[z;lh; g{kpfSf;Fk; (giHa f/r/252 g{kpf;Fk; tlf;F. f/r/252-2 vd;/nf/uhkrhkp g{kpf;Fk; (giHa f/r/284 g{kpf;Fk;) nkw;F. ,jd; kjpg;g[ U:/50.000-?/ ,jd; kj;jpapy; g[";ir Vf;fh; 9/91 (vr;) gpd;Dk; nkw;go rj;jpak';fyk; rg;hpoL thzpg;g[j;J}h; fpuhkj;jpy; f/r/384 be/fhiyapy; g[/V/3/70 ,jpy; 1-12y; g';F g[/V/ 0.305-6 ,e;j fhiyapy; nky;thuk; Fofhu ghj;ak;?,jd; kjpg;g[ U:10.000-?/ (I)gpd;Dk; nkw;go rj;jpak';fyk; rg;hpoL Fj;jpahyj;J}h; fpuhkk; vf;fj;J}hpd; f/r/668 be/ fhiyapy; g[/Vf;fh; 30/34 ,jpy; bghJtpy; 5/09 ,jpy; 1-3 g';F bghJtpy; Vf;fh; 1/692-3 ,jd; kjpg;g[ U:/25.000/-/”
33. After receipt of the reply notice Ex.A3, she has questioned the Will dated 03.01.1992 on two grounds first Will itself is not geninue. The Second Will was executed while her father was not in good and sound disposing state of mind. As pointed out earlier, the plaintiff has not taken any steps to collect the evidence to disprove the geniuness of the Will or to establish her assertion that on 03.01.1992 her father was not in sound disposing state of mind. Her attempt filing the application to produce documents nearly after 10 years, after the suit and seeking production of medical records from the hospital itself expose her intention to allow the memory to lapse by efflux of time and document to get untraceable thereafter to force the defendant to prove the impossible.
34. Even the schedule of property mentioned in the plaint itself based on the partition deed dated 22.02.1955 and it is evidently clear that the plaintiff was not in touch with the testator for a long time, which has resulted in exposing her ignorance about the alienation of (1)Item No.3 in the 'A' schedule property under Ex.B6 on 14.08.1985 by her father S.R.Chinnia Gowder and (2) the settlement deed executed by Chikkammal in respect of 'B' schedule property as early as 1959.
35. In fact, the settlement deed has been upheld by the Court as early as 27.07.1987 vide Ex.B13 subsequent alienation of the property found in 'B' schedule through Exs.B3, B4 and B5 also clearly expose the defect in the plaintiff’s case, who has commenced the litigation with a roving enquiry and filed the suit based on surmises without any material evidence to claim right the property.
36. For the aforesaid reasons, this Court hold that the plaintiff has not proved her right over the suit schedule properties, some of which not in existence and rest been duly bequeathed upon the defendants 3 to 5 under the Will Ex.B7.
37. In the result, the First Appeal is dismissed. No order as to costs. Consequently, connected Miscellaneous Petition is closed if any.
03.03.2017 Index:Yes/No Internet:Yes/No To The Additional District Judge, Fast Track Court No.III, Coimbatore.
Dr.G.Jayachandran, J.
ari
Pre-delivery judgment made in Appeal Suit No.288 of 2008
.03.2017
http://www.judis.nic.in