Nachimuthu v. Dharmakutty

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.11.2017 C O R A M THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA S.A.No.524 of 2017 and C.M.P.No.12620 of 2017 Nachimuthu .. Appellant/Appellant/ Plaintiff -VsDharmakutty .. Respondent/Respondent/ Defendant PRAYER: Second Appeal filed under Section 100 C.P.C to set aside the Judgment and Decree passed in A.S.No.31 of 2009 on the file of the Sub Court, Dharapuram dated 10.02.2011 confirming the judgment and decree of the trial Court in O.S.No.210 of 2001 on the file of the District Munsif Court, Dharapuram dated 27.01.2009.

For Appellant :

Mr.B.Dyaneswaran For Respondent :

Mr.N.Damodaran

O R D E R

The plaintiff is the appellant having lost before the Courts below in a suit filed for declaration and for permanent injunction.

2.

The averments made in the plaint are that the suit properties were purchased by Akkiyammal as a vacant site on 16.09.1969. Thereafter, the said Akkiyammal constructed a building and obtained electricity service connection. Akkiyammal died on 02.09.1992. As she had no issues, obsequies were performed by her younger brother, who is the plaintiff. It is the case of the plaintiff that on 20.08.1992, the said Akkiyammal executed a Will bequeathing her right and properties in favour of the plaintiff. It is his further case that after the death of Akkiyammal, the Will came into force and the plaintiff has been residing in the suit properties pursuant to the same. While so, the father of the defendant, by name, Ponnusamy issued a legal notice on 17.12.1992 claiming right over the suit properties. A suitable reply was also sent. As

the defendants interfered with the peaceful possession of the plaintiff on 15.07.2001, which was averted by the plaintiff, he was constrained to file the suit.

3.

Resisting the suit, the defendant had filed the written statement denying the execution of the Will. According to the defendant, the Will itself is a forged one and there are other heirs of Akkiyammal. The plaintiff has got no right to take away the suit properties. Hence, he prayed for dismissal of the suit.

4.

Before the Trial Court, the plaintiff examined himself as PW-1 and three more witnesses were examined as PW-2, PW-3 and PW-4 and Exhibits A1 to A39 were marked. On the side of the defendant, the defendant examined himself as DW-1 and one more witness was examined as DW-2 and Exs.B1 to B24 were marked. 5.

Based on the pleadings as well as oral and documentary evidence, the trial Court had dismissed the suit holding that the plaintiff has not proved the Will in the manner known to law. On appeal also, the first Appellate Court confirmed the judgment and decree of the trial Court. Aggrieved by the same, the above second appeal has been filed by the plaintiff. 6.

Heard the learned counsel for the appellant and the learned counsel for the respondent and perused the materials available on record.

7.

Learned counsel appearing for the appellant would argue that the Will has been proved in the manner known to law. Admittedly, the testatrix-Akkiyammal died on 02.09.1992 and the alleged Will is dated 20.08.1992, which was executed less than two weeks prior to the death. P.W.1, who is the plaintiff in his evidence, has stated that he does not even know the date of death of the said Akkiyammal. He has also admitted that he did not know about the place and date of execution of the Will It is a settled principle that the execution of the Will has to be proved in the manner known to law as per Section 68 of the Indian Evidence Act. The plaintiff also had taken efforts to examine P.W.2 and P.W.3, who are the attestors of Ex.A-6-Will.

Both the attestors have stated that the Will was written in the Sub Registrar Office and the same was drafted by P.W.4 with the help of the photocopy of the sale deed, which was brought by Akkiyammal. Admittedly, the original title deeds of Akkiyammal have not been produced by either of the parties before the Court. When P.Ws 2 and 3 have deposed that the sale was executed in the Sub Registrar Office, there is no reason forthcoming as to why the same was not registered.

execute the Will by bringing the photocopy of the sale deed. However, she died within 12 days from the date of execution of the Will. It is not stated by both the parties as to what was the status of the health of the testatrix on the date of the execution of the Will, when she has personally come to the Registrar Office for the purpose of executing the Will. The scribe P.W4 also does not seem to know about the parties earlier. The absence of original title deed and the non registration of the Will, despite the same having been executed in the Registrar Office, has driven the Courts below to take a decision that the Will was not genuine. As the claim of the plaintiff is only based on the Will and the same having not been proved, the plaintiff is not entitled for the relief of declaration of title.

8.

The next question that arise for consideration is about the possession of the plaintiff in the suit property? 9.

Even with regard to the possession of the plaintiff, there are no documents produced excepting the electricity bill and the property tax receipts. The property tax receipts produced by the plaintiff were all prior to the death of the testatrix. Excepting the above, there are no evidence to show that the plaintiff is in possession of the suit properties. 10.

In the above circumstances, the Courts below have come to the definite conclusion that the Will was not proved in the manner known to law nor the same was acted upon and therefore dismissed the suit against the plaintiff. As the only document relied upon by the plaintiff is Ex.A-6, which is not proved, the plaintiff has been rightly non-suited by the Courts below concurrently.

11.

In the conspectus of the above facts, this Court is of the view that the plaintiff has not cleared the doubts of the Court about the genuineness of the Will nor the factum of possession to entitle him to get the relief sought for. 12.

In such circumstances, in the absence of any questions of law arising for consideration in this Second Appeal. I find that there is no reason for interference with the concurrent findings of the Courts below and the appeal deserved to be dismissed.

13.

Accordingly, the Second appeal is dismissed confirming the Judgment and decree of the Courts below. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CCC) //True Copy// Sub Assistant Registrar srn To

1. The Sub Judge Dharapuram

2. The District Munsif, Dharapuram

3. The Section Officer, V.R.Section, High Court, Madras.

S.A.No.524 of 2017 and C.M.P.No.12620 of 2017 cnr(co) aa03/01/2018