AS/770/2023 of K.S.Krishnasamy (Died) 1.K.Umamaheshwari Vs Lakshmi
2026:MHC:1543
A.S. No.770 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.02.2026
DELIVERED ON : 10.04.2026
CORAM:
THE HONOURABLE MR.JUSTICE P .B.BALAJI
A.S.No.770 of 2023
and
C.M.P.Nos.26961 of 2023 & 2947 of 2026
K.S.Krishnasamy (Died)
1.K.Umamaheshwari
2.Geethapadmini
3.Sudha
4.K.Santhamani ...
Appellants
Vs.
Lakshmi ...
Respondent
P RAYER : First Appeal filed under Section 96 of the Civil
Procedure Code, praying to set aside the judgment and decree
dated 31.07.2023 made in O.S.No.543 of 2012 on the I Additional
District Judge, Coimbatore and to allow the First Appeal.
For Appellants : Mr.SR.Raghunathan
for Mr.V .Anandhamurthy
For Respondent : Mr.T.Saikrishnan
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JUDGMENT
The defendants in O.S.No.543 of 2012, on the file of the First
Additional District Judge, Coimbatore are the appellants herein.
Pleadings:
2.Plaint in brief:
2.1.Plaintiff and the first defendant are daughter and son of
late Subbiah Gounder, through his first wife. After the death of the
first wife, their father married one Thangammal, through whom no
children were born. Suit property originally belonged to Pongia
Gounder and his sons, and in and by partition deed dated
11.09.1929, the suit property was allotted to the share of the father
of the plaintiff Subbiah Gounder. Under a sale deed dated
23.06.1937, Subbiah Gounder got 1/3
rd
share and in an oral
partition, he derived 4.88 acres. Subbiah Gounder died in
November 1946. His second wife Thangammal became entitled to
half share in the entire property. Plaintiff is entitled to 1/3
rd
share.
Thangammal, the second wife died on 12.02.2012 and her share
also became her absolute property after the commencement of the
Hindu Succession Act. As Thangammal died without any issues, the
plaintiff and the first defendant succeeded to her share. Thus, the
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plaintiff as a heir of her father and as a heir of her step-mother
becomes entitled to an equal one half share, the other half share
belonging to brother of the plaintiff viz., the first defendant.
2.2.The first defendant and the second wife of Subbiah
Gounder jointly sold one Acre to a third party and the plaintiff is
not a signatory to the said sale deed. The Plaintiff demanded
partition. However, the plaintiff's demand was evaded by the
defendants. The defendants 2 to 4 are daughters of the first
defendant and they claim under the settlement deed dated
27.07.2011, based on an alleged Will executed by Thangammal
dated 25.07.2011. Will of Thangammal is not true and genuine. The
first defendant, brother of the plaintiff died intestate on 03.07.2013
and his wife is the fifth defendant and daughters are defendants 2
to 4. They only inherited half share of the first defendant. Hence,
the suit for partition and permanent injunction was filed to restrain
the defendants from a; alienating or encumbering the suit property.
3.Written statement filed by the first defendant and later
adopted by the defendants 2 to 4 in brief:
3.1.The plaintiff is no doubt is the daughter of Subbiah
Gounder, through first wife, born in the year 1937. The first wife
died in the year 1939. Thereafter, Subbiah Gounder married
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Thangammal. The property measuring 2.59 acres in S.F .No.72/2 of
Kannampalayam Village was allotted to the share of the Subbiah
Gounder, in a partition dated 11.02.1929. Subbiah Gounder was
carrying on agricultural operations in the property. He also
purchased properties through registered sale deed dated
23.06.1937, besides also becoming entitled to other properties in a
family arrangement dated 30.10.1937. The properties were all
enjoyed by Subbiah Gounder as his ancestral properties.
3.2.The first defendant, being his only son, became entitled
to one half share. Subbiah Gounder, died in the year 1945 and not
1946, as alleged by the plaintiff. Properties devolved only on the
first defendant and mother of the first defendant namely
Thangammal, second wife of Subbiah Gounder. The right of
enjoyment of said Thangammal is also restricted and she had no
power of alienation. The first defendant is entitled to 3/4
th
share
and Thangammal to 1/4
th
share. The said 1/4
th
share blossomed into
a full share in terms of the Hindu Succession Act, 1956. Plaintiff is
not entitled to any share. The first defendant and Thangammal
joined by defendants 2 to 4, sold one acre in S.F .No.72/2, in and by
sale deed dated 31.05.1991, about which the plaintiff is fully aware.
The plaintiff consented for the said alienation, by executing a
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Varthamana letter on 13.05.1991. Thangammal also executed a Will
dated 25.07.2011, bequeathing her 1/4
th
share in favour of the
defendants 2 to 4 and the said Will has come into effect on
12.02.2012, with the demise of Thangammal. The first defendant
has executed a settlement deed on 27.07.2011, in favour of
defendants 2 to 4 and the defendants 2 to 4 have thus became
absolute owners of the suit property. Plaintiff has not valued the
suit property and the suit is bad for non-joinder of necessary
parties.
4.Written Statement filed by the fifth defendant in brief:
Subbiah Gounder died in 1945 and not 1946 as contended by
the plaintiff. The first defendant alone became entitled to the entire
property and the plaintiff is not entitled to any property. Revenue
records have also been mutated in the name of the first defendant,
who was enjoying the suit property as his absolute property.
Plaintiff has not objected to the sale deed executed by the first
defendant and her step-mother Thangammal, on 31.05.1991.
Thangammal has also executed a Will dated 25.07.2011, in favour
of the defendants 2 to 4. The first defendant has also settled his
share in favour of defendants 2 to 4 and thus, defendants 2 to 4 are
enjoying the suit properties as absolute owners, in terms of the Will
and settlement deed referred hereinabove. Plaintiff has no right in
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the suit properties. Suit is bad for mis-joinder and there is no cause
of action for the suit.
5.Additional Written Statement filed by the third defendant:
The power of attorney executed to represent the plaintiff is
unregistered and has not been executed by the plaintiff. The power
of attorney has been executed only to avoid the plaintiff from
entering witness box as her evidence would turn adverse to her
own case. Power agent cannot depose on behalf of the plaintiff
with regard to the acts done by the plaintiff, prior to the execution
of the power of attorney. Subbiah Gounder died even prior to
coming into force of the Hindu Succession Act and the plaintiff has
no right over the property. There is no cause of action for the suit.
The plaintiff having failed to challenge the sale deed executed by
the first defendant in the year 1991, is not entitled to question the
rights of the defendants in the suit property.
6.Based on the pleadings, the following issues were framed:
i) Whether the plaintiff is born to the 1
st
wife of the Subbiah Gounder?
ii) Whether it is true that the 1
st
wife of
Subbiah Gounder died in the year 1939 as
claimed by the defendants?
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iii) Whether the plaintiff has right to claim
share in the suit properties?
iv) Whether the alleged Will executed by
the 2
nd
wife of Subbiah Gounder is true and
binding on the plaintiff?
v) Whether the settlement deed dated
27.07.2011 alleged to be executed by the 1
st
defendant is binding on the plaintiff?
vi) Whether the suit is bad for non-joinder
of necessary parties as claimed by the
defendants?
vii) Whether the 5
th
defendant is not a
necessary party to the suit?
viii) Whether the plaintiff is entitled to the
share claimed for?
ix) Whether the plaintiff is entitled to the
relief of permanent injunction as sought for?
x) What other reliefs is the plaintiff entitled
to?
7.Trial:
On trial, the plaintiff examined herself as P .W .1 and marked
Exs.A.1 to A4. On the side of the defendants, D.W .1 and D.W .2 were
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examined and Exs.B.1 to B.16 were marked.
8.Decision of the trial Court:
Trial Court, finding that the daughter is also entitled to a
share in the suit properties, taking note of the decision of the
Hon'ble Supreme Court in the case of Vineetha Sharma Vs.
Rakesh Sharma, reported in 2020-5-LW 300, found that the date
of death of the father would be irrelevant and decreed the suit
granting a preliminary decree of partition, declaring the plaintiff's
share as one half and also granting permanent injunction,
restraining the defendants from alienating or encumbering the said
property in any manner.
9.Aggrieved by the said judgment and decree, the defendants
are on First Appeal.
10.I have heard Mr.S.R.Raghunathan, learned Counsel for
Mr.V .Anandhamurthy, learned Counsel for the appellants and
Mr.T.Saikrishnan, learned Counsel for the respondent.
11.Arguments of Mr.S.R.Raghunathan:
11.1.Mr.S.R.Raghunathan, learned Counsel for the appellant
would firstly contend that the trial Court has committed a grave
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error in applying the ratio laid down by the Hon'ble Supreme Court
in Vineetha Sharma's case, without noticing that the decision of
the Hon'ble Supreme Court was relating only to succession under
the 1956 Act and would not in any manner affect succession, which
has opened prior to the commencement of the 1956 Act. He would
also state that the plaintiff was fully aware of the fact that, she was
not entitled to any share and that was the reason why she executed
the Varthamana letter. Though a copy of the said Varthamana letter
was marked as Ex.B.2, the trial Court has not taken note of the said
document, on the ground that the original has not been filed and
also on the ground that the Varthamana letter is unregistered and
unstamped. He would also state that appellants have also now
taken out an application for marking the said Varthamana letter in
original.
11.2.Mr.S.R.Raghunathan, would further state that the
appellants had also filed an additional written statement in and
whereby, it has been contended that the lands being agricultural
lands, the Hindu Women's Right to Property Act, 1937, was made
applicable to the suit properties vide Act 26 of 1947 with
retrospective effect from 26.11.1946 onwards. He would therefore,
contend that when Subbiah Gounder had died in the year 1945, his
second wife Thangammal would not get any share in the suit
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properties and the entire suit properties would fall only on the
shoulders of the first defendant, the only male heir of the Subbiah
Gounder.
11.3.Mr.S.R.Raghunathan, would also state that the
respondent / plaintiff has not been able to substantiate the correct
date of death of Subbiah Gounder and taking me through the
plaint, as well as deposition of the parties, he would state that
excepting for stating that said Subbiah Gounder died in 1946, no
date has been mentioned in the plaint. On the contrary, pointing
out the stand of the appellants in the written statement as well as
registered documents executed in 1991, conveying 1 acre of land
jointly in favour of a third party, the documents clearly mention the
year of death as 1945. It is not open to the plaintiff, without
establishing the correct date of death of Thangammal, to claim a
share under Thangammal.
11.4.As regards the finding of the trial Court, regarding
plaintiffs' entitlement to a half share in the share of Thangammal,
Mr.S.R.Ragunathan, learned Counsel would further state that
defendant was entitled to take inconsistent pleas. He would further
state that if at, all the issue of estoppel or acquiescence was raised
by Thangammal against the defendants, the decision would have
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been different and the defendants would certainly be estopped by
acquiescence, but however, he would contend that in a lis as
between the appellants and the respondent, no estoppel or
acquiescence would arise and plaintiff cannot contend that by
conduct, defendants have conferred title on Thangammal.
11.5.Without prejudice to the above submissions
Mr.S.R.Raghunathan, would state that, in any event Thangammal
had executed her last Will and testament on 25.07.2011 and with
the evidence of D.W .1 and D.W .2, the appellants have established
due execution of the said Will executed by Thangammal. He would
further point out that in cross examination of D.W .1 and D.W .2, not
even a suggestion has been put questioning the sound and disposed
state of mind of the testatrix. He would therefore, state that the
Court is entitled to presumption that the testatrix was in a sound
mind at the time of execution of Will.
11.6.In support of his submission Mr.S.R.Raghunathan, has
relied on the following decisions:
i) Eramma Vs. Veerupana & others reported in 1965 SCC
Online SC 23;
ii) Vineeta Sharma Vs. Rakesh Sharma reported in
(2020) 9 SCC 1;
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iii) Rayachand Wanmalidas Vs. Sheth Maniklal
Mansukhbhai reported in AIR 1946 Bom 266 (FB);
iv) Chapsibhai Dhanjibhai Danad Vs. Purushottam
reported in Air 1971 SC 1878;
v) Kamakshi Builders Vs. Ambedkar Educational
Society reported in (2007) 12 SCC 27;
vi) Muddasani Venkata Narsaiah Vs. Mudasani Saroja,
reported in (2016) 12 SCC 288.
12.Arguments of respondent Counsel Mr.T.Sai Krishnan:
12.1.Learned Counsel for the respondent / plaintiff would
firstly state that with regard to the defence regarding the
properties being agricultural lands and the retrospective operation
of the Hindu Women's Right to Property Act, 1937, only from
26.11.1946, there is no pleadings. In this regard, he would state
that though learned Counsel for the appellants has made elaborate
submissions, the application filed by the appellants to file an
additional written statement was in fact, dismissed by the trial
Court and despite a challenge to the said order by way of revision
to the High Court, the appellants were not permitted to file the
additional written statement. He would invite my attention to the
observations and findings in paragraph No.5 of the judgment
referring to I.A.No.391 of 2018, having been dismissed on
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25.09.2018. It is therefore, the contention of Mr.T.Sai Krishnan,
learned Counsel for the respondent that it is not open to the
appellants to canvas the said ground, in the absence of pleadings.
He would therefore, state that as long as additional written
statement has not been taken on file, no reference could be made
to the said additional written statement.
12.2.Mr.T.Sai Krishnan, would further state that the fact that
Thangammal, second wife joined execution of sale deed in favour of
a third party would suffice to presume an admission on the side of
the appellants that Thangammal had a definite share in the suit
property and the first defendant being a party to the said sale deed
along with the appellants, cannot now contend that the second
defendant did not have any share. In this regard, he would also
state that even as a back up, the appellants are only falling back on
alleged Will executed by Thangammal. Therefore, viewed from any
angle according to Mr.T.Sai Krishnan, learned Counsel, the
appellants have conceded the right of Thangammal. Therefore, it is
no longer open to the appellants to state that Thangammal was not
entitled to any share and it is only the first defendant, who became
the absolute owner after the demise of the father Subbiah Gounder.
12.3.Referring to the statement of objections and reasons of
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the Amendment Act, 39 of 2005 and relevant paragraphs of the
judgment of the Vineeta Sharma's case referred to herein supra,
Mr.T.Sai Krishnan, would state that the Act itself only intended to
amend and codify the existing law. The Act only brought about
changes in the law of succession and gave rights which were till
then unknown in relation to women's property. Referring to the
relevant paragraphs of Vineeta Sharma's case, Mr.T.Sai Krishnan,
learned Counsel for the respondent would state that, irrespective of
whether the father was alive or not, the daughter would become a
coparcener by birth and therefore, insofar as the ancestral
properties of father Subbiah Gounder, she would become entitled
to one half share on her birth and even in respect of the share of
Thangammal, who was step-mother of the plaintiff as well as first
defendant her half share would also be taken only by plaintiff and
first defendant. It is therefore, submitted by the learned Counsel
for the respondent that the trial Court has not committed any error
in declaring the one half share of the respondent / plaintiff. As
regards Ex.B.16 Will, learned Counsel appearing for the
respondent / plaintiff, relying on the evidence of the contesting
witness D.W .2, would state that his evidence does not satisfy the
mandate of Section 63(c) of the Indian Succession Act. He would
therefore, state that the trial Court has rightly appreciated the
evidence of the attesting witnesses in disbelieving Ex.B.6.
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12.4.In support of his submissions, Mr.T.Sai Krishnan, has
relied on the following decisions:
i) Palaisamy Vs. Chinnakandan reported in 2012 5 L.W.
145;
ii) Ramnath Sao Vs. Goberdhan Sao reported in (2017)
13 SCC 149;
iii) A.Kanagalakshmi Vs.V .Gururaj, reported in 2018 (3)
CTC 250.
iv) Selvamani & others Vs. Ponnusamy & others reported
in (2019 4 L.W. 937;
v) Thenmozhi Vs. Kousalya reported in 2023 (2) CTC
328;
vi) C.Murali Vs. S.Kumar, reported in 2025 (3) CTC 499;
vii) Shivakumar & others Vs. Sharana Basappa & others
reported in (2021) 11 SCC 277;
viii) V .Prabhakara Vs. Basavaraj reported in 2022 (1)
SCC 115;
ix) S.Balachandar Vs. N.Palanisamy reported in 2021 (3)
CTC 300;
x) Johrilal Chowdhary (Died) Vs. D.Shankar Chettiar
reported in 2021 (4) CTC 716;
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xi) Marimuthu & others Vs. Natarajan & others reported
in 2020 (5) CTC 533.
Analysis:
13.I have carefully considered the submissions advanced by
the learned Counsel for the appellants as well as the learned
Counsel for the respondent.
14.Based on the submissions made by them, I proceed to
formulate the following points for consideration:
1) Whether C.M.P .No.2947 of 26 seeking
permission to produce the original Varthamana
letter as additional evidence in the present appeal
can be entertained?
2) Whether the plaintiff would become
entitled to a right by birth in view of Act 39 of
2005, as interpreted by the Hon'ble Supreme
Court in Vineeta Sharma's case?
3) Whether Thangammal had any right in
the suit properties and if so, whether the Will
dated 25.07.2011, has been proved to be duly
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executed, in order to disinherit the plaint?
15.Point No.1:
15.1.The Varthamana letter dated 13.05.1991, said to have
been executed by the respondent / plaintiff, consenting for the sale
of 1 acre of land by her step-mother and brother / first defendant
was marked as Ex.B.2, before the trial Court. However, the trial
Court has discussed about the said Exhibit and finding that the
original of the same has not been filed and further in view of the
fact that, the said Varthamana letter is unregistered and also
unstamped, has found that Ex.B.2, had no evidentiary value. In the
present appeal, the original of the said Varthamana letter is sought
to be produced as additional evidence. In the affidavit in support of
the said application in C.M.P .No.2947 of 2026, it is stated that the
original was traced after thorough search and no serious prejudice
would be caused to the respondent, if the original is permitted to
be exhibited before this Court, as an additional document.
15.2.By filing a counter to the said application, the
respondent has resisted the request for the said additional
document being permitted to be received, contending that the
photostat copy of the same was already marked as Ex.B.2 and the
trial Court has elaborately discussed about the admissibility of the
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said document and has rightly not taken into consideration the said
Varthamana letter. It is therefore, contended that the production of
the original at this stage is not going to, in any manner help the
appellants.
15.3.I will first deal with the admissibility and evidentiary
value of the said Varthamana letter, on the ground that it is
unstamped and unregistered.
15.4.From the contents of Ex.B.2, which is already marked
before the trial Court, I find that the plaintiff in and by the said
Varthamana letter has stated that she does not have any right in
the subject property, which was proposed to be sold to a third party
by her brother and step-mother, Thangammal. Therefore, I do not
see how such a consent letter, which is only in the nature of an
affidavit of disclaimer, at best, needs to be stamped or
unregistered. Section 17 of the Registration Act, 1908, makes
registration of documents compulsory, only when such document
purports or operates to create, declare, assign, limit or extinguish
any right, title or interest in immovable property of a value of 100
rupees and more. The said Varthamana letter does not in any
manner declare, assign, limit or extinguish any right, title or
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interest in an immovable property.
15.5.On the contrary, the respondent / plaintiff, only puts it
on record that she has no right in the property and therefore, has
no objection for the property being alienated by her brother and
step-mother. Therefore, the finding of the trial Court that the
document is unregistered and unstamped and hence, cannot be
received in evidence, is liable to be set aside.
15.6.This alone is not however, not sufficient for the
appellants for being entitled to, as a matter of right, persuade the
Court to look into the said Varthamana letter. The execution of the
Varthamana letter has been seriously disputed by the plaintiff,
throughout. The trial Court has rightly found that no efforts have
been taken by the defendants to establish the truth and
genuineness of the said Varthamana letter. Therefore, even by
producing the original of the said Varthamana letter, marked as
Ex.B.2, at this appeal stage, the document will not have any
evidentiary value, since the very execution of the said document
has been disputed by the respondent / plaintiff. Therefore, when
the execution of Ex.B.2 has not been proved, I do not see any
grounds to permit the original of Ex.B.2, Varthamana letter to be
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received as additional document in the appeal. Accordingly, Point
No.1 is answered against the appellants.
16.Point No.2 & 3:
16.1.The respondent / plaintiff has contended that
eventhough the properties are ancestral properties, with the
advent of the Hindu Succession Act, 1956, and amended by Act 39
of 2005, and the path breaking judgment in Vineeta Sharma's
case, the daughter would become a coparcener by birth and
therefore, it is not open to the brother / first defendant to contend
that, he alone takes the entire property, on the demise of the father,
Subbiah Gounder. The arguments, though appears to be interesting
and attractive at first blush, the ratio laid down in Vineeta
Sharma's case has to be interpreted in the context in which it has
been rendered.
16.2.The Hon'ble Supreme Court was dealing with a case of
succession opening after the commencement of the Hindu
Succession Act in the year 1956. Therefore, the ratio laid down by
the Supreme Court that the date of death of the father would be
irrelevant, would certainly have to be viewed from the facts of the
said case, where the daughter claimed a right under Section 6 of
the Hindu Succession Act, 1956 as amended by Act 39 of 2005. In
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such circumstances, the Hon'ble Supreme Court held that even
after born daughters would also become entitled to be treated as
coparceners along with the sons. Vineeta Sharma's case does not
lay down a proposition that a daughter has to be treated as a
coparcener, even if succession opened prior to the coming into
force of the 1956 Act.
16.3.In the instant case, admittedly, Subbiah Gounder died
before 1956; though there is a dispute with regard to the year of
death, with the plaintiff contending that her father died in 1946,
and the appellants contending that Subbiah Gounder died in 1945.
However, when admittedly, Subbiah Gounder died prior to the
commencement of the 1956 Act, the Hindu Succession Act was not
in force on the said date and therefore, when succession opened on
the date of death of the Subbiah Gounder, it would go only as per
the then prevailing customary law. In other words, the male
coparceners alone would be entitled to a right by birth. Viewed in
such a manner, the separate half share of Subbiah Gounder would
go in two shares, one half share to the first defendant, son and the
remaining half share to his second wife, Thangammal. Hence, the
plaintiff is not entitled to a share on birth.
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16.4.Though it is contended by the learned Counsel for the
appellants that in view of the retrospective effect given to the
operation of the Hindu Women's Right to Property Act, 1937, from
26.11.1946, Thangammal cannot be entitled to any share, since
Subbiah Gounder died even in 1945. As rightly contended by
Mr.T.Sai Krishnan, no such plea was taken before the trial Court.
The said plea is placed only in the additional written statement. It
is noted that the application seeking to file said additional written
statement was dismissed and the said order was confirmed in
revision. Thus, I am unable to see how the appellants can fall back
on the pleadings in the additional written statement. Even dehors
the above, in the light of the fact that Thangammal herself has
joined execution of the sale deed in Ex.B.1 in favour of a third party
in the year 1991, which document clearly speaks about the step-
mother Thangammal being entitled to a share in the property and
more so, when Thangammal has executed a Will and the appellants
are also claiming right under the said Will, I am unable to accept
the arguments advanced by the learned Counsel for the appellants
that Thangammal was not entitled to any share in the property.
16.5.Principle of application of estoppel as argued by
Mr.S.R.Raghunathan, may be right in the sense that, in a lis
between Thangammal and the appellants, the appellants certainly
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cannot contend that Thangammal is not entitled to a share, but
however, viewed from the angle that all along after the demise of
Subbiah Gounder, Thangammal has exercised rights as owner even
in 1991 and again at the time of executing Ex.B.16 Will, I do not
see how the appellants are permitted to canvas a case that
Thangammal was not entitled to any share at all in the property.
Hence, Point No.2 is answered in favour of the appellants and
against the respondent.
17.Now, having come to the conclusion that Thangammal had
a share in the property, the only question remains is whether the
Will in Ex.B.16, has been duly proved under Section 63 (c) of the
Indian Succession Act, 1925 r/w. Section 68 of the Indian Evidence
Act, 1872.
17.1.Ex.B.16 is the Will executed by Thangammal. One of the
attesting witnesses to the said Will has been examined as D.W .2. In
his evidence, in chief examination, he has stated that his
grandfather is the elder brother of the testatrix, Thangammal. He
speaks about the family, Thangammal having married Subbiah
Gounder and that Subbiah Gounder's first wife had died
subsequent to which, he married his aunt Thangammal. He has also
stated that Thangammal and Subbiah Gounder were not blessed
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with any issues. He speaks about the execution of the Will on
25.07.2011. He has further stated that Thangammal requested him
to come to her residence on the next day for purposes of attesting
the Will proposed to be executed by her. He has also stated that he
went to Thangammal's residence at about 9 a.m. in the morning on
25.07.2011. He has spoken about the Advocate reading out the Will
aloud to Thangammal. He has also stated that he read the contents
of the Will before the Will was printed on bond sheets. He clearly
deposes as follows:
“jq;fk;khs; brhj;J gj;jpuq;fis tHf;fwpQhplk;
bfhLj;J ckhknf\;thp> fPjhgj;kpdp> Rjh (2 Kjy; 4
gpujpthjpfs;) Mfpnahh; bgaUf;F capy;rhrdk;
vGjntz;Lk; vd brhd;dhh;. jq;fk;khSf;F> tHf;fwpQh;
capy;rhrdk; khjphp xd;iw jahh; bra;J mij
jq;fk;khSf;F goj;J fhz;gpj;jhh;. jq;fk;khs; vd;ida[k;
capy;rhrdj;jpd; khjphpia gof;f brhd;dhh;. ehDk;
goj;njd;. gpd;g[ capy;rhrdj;jpd; khjphpapy; cs;s
tptuq;fs; ehd;F gr;ir jhs;fspy; gphpz;l vLf;fg;gl;lJ.
mjpy; jq;fk;khs; ifnuif itj;jhh;. mjpy; ehDk;>
Mh;j;jpa[k; rhl;rp ifbaGj;J bra;njhk;. nkw;brhd;dthW
jahh; bra;ag;gl;l capy;rhrdk; jhd;; jw;nghJ vd;dplk;
fhl;lg;gLk; capy;rhrdk; MFk;. mJ gp.th.rh.M.16. mjpy;
xt;bthU gf;fj;jpy; cs;s ifnuif jq;fk;khspd;
ifnuifahFk;. gp.th.rh.M.16y; cs;s Kjy; rhl;rpapd;
ifbaGj;J Mh;j;jpapd; ifbaGj;J MFk;. jq;fk;khs;
gp.th.rh.M.16y; xt;bthU gf;fj;jpYk; ifnuif itj;J
gpd;g[ Mh;j;jp mjpy; rhl;rp ifbaGj;J bra;jhh;. Mh;j;jp
rhl;rp ifbaGj;J bra;a[k;nghJ ehDk;> tHf;fwpQh;
rz;KfRe;juKk;> jq;fk;khSk; ,Ue;njhk;. gp.th.rh.M.16y;
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2tjhf cs;s rhl;rp ifbaGj;J vd;Dila
ifbaGj;jhFk;. ehd; gp.th.rh.M.16y; rhl;rp ifbaGj;J
nghl;lnghJ jq;fk;khs;> tHf;fwpQh; rz;Kf Re;juk;>
Mh;j;jp Mfpnahh; ,Ue;jdh;. gp.th.rh.M.16y; Kjy;
gf;fj;jpd; gpd;g[wj;jpy; nkny xl;lg;gl;l g[ifg;glj;jpy;
cs;sJ jq;fk;khs;. me;j g[ifg;glj;jpd; nkny
jq;fk;khs; ifnuif itj;Js;shh;. mjd; fPnH
cs;s ,uz;L g[ifg;glq;fspy; xd;W Mh;j;jpapDilaJ.
kw;bwhd;W vd;DilaJ. Mh;j;jpapd; g[ifg;glj;jpd; kPJ
mtUk;> vd;Dila g[ifg;glj;jpd; kPJ ehDk;
ifbaGj;Jf;fs; bra;njhk;. nkw;brhd;d midj;Jk;
gp.th.rh.M.16 capy;rhrdk; Vw;gl;l md;nw vq;fshy;
bra;ag;gl;lJ. mjd; gpd;g[ nehl;lhp gp.th.rh.M.16y;
ifbaGj;J bra;jhh;. nehl;lhp> rhl;rpfspd;
ifbaGj;JfSf;F fPnH ifbaGj;J bra;jhh;.
gp.th.rh.M.16y; Kjy; gf;fj;jpd; gpd;g[wj;jpy; cs;s
g[ifg;glq;fspd; kP;J nehl;lhp rPy; itj;jhh;.
gp.th.rh.M.16y; nehl;lhp rPy; itj;jJk;> ifbaGj;J
bra;jJk; md;nw vq;fs; Kd;dpiyapy; bra;ag;gl;ljhFk;.”
17.2.In his cross examination, despite being grilled about the
facts pertaining to execution of the Will, I do not find any dent
having been made by the plaintiff's Counsel. In fact, he has not only
denied the suggestion that the testatrix was not even in a position
to work without assistance but has further stated that Thangammal
was looking after her daily chores without any assistance from
anybody. He has also denied the suggestion that she had no vision
in one eye and she was also hard of hearing. Merely because he has
not been able to state the name of the person who took the final
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print out of the Will and non-mentioning of the name of the
Advocate who prepared the Will or the typist who printed the same,
in my considered view, it would not be fatal to the case of proof of
execution of the Will.
17.3.The requirement of Section 63(c) has been fully
complied and satisfied with in the facts of the present case. With
regard to the said aspects, I do not find any holes in the evidence,
despite elaborate cross examination on the side of the plaintiff.
Independently, I have also gone through Ex.B.16 Will. The Will is an
unregistered Will. The testatrix has affixed her left thumb
impression in all the four pages of the Will. The spacing amongst
the lines in the Will appears to be normal and there is no
irregularity. In fact, the last page of the Will ends almost towards
the first half and the Left Thumb Impression of the testatrix has
been placed right below the last sentence of the Will. Below the
testatrix's signature, two attesting witnesses have signed. The
notary public by name, A.Shanmuga Sundaram has also attested
the Will on the same day. Apart from the signatures on the four
pages of the Will, on the reverse of the first page, the photograph
of the testatrix as well as the attesting witnesses have been affixed.
Seal of the notary public is also affixed across the photographs. The
two witnesses have also affixed their signatures, besides their
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photographs. The testatrix has also affixed her Left Thumb
Impression over her photograph affixed on the reverse of the first
page.
17.4.I do not find any suspicious circumstances surrounding
in the execution of the Ex.B.16 Will. The requirements of Section
63, have been fully satisfied. Merely because the attesting witness
D.W .2 has only stated that testatrix has affixed Left Thumb
Impression in the Will and does not state that he has seen the
testatrix affixing the Left Thumb Impression, in my considered
opinion, it will not amount to failure, to prove due execution.
Evidence of the attesting witness cannot be read in isolation. It
should be read as a whole. Entire evidence, if read in unison, both
chief and cross, clearly points to the fact that the attesting witness
has spoken about the testatrix affixing her Left Thumb Impression
and as to how she affixed her Left Thumb Impression in all the
pages and thereafter, the other attesting witness Arthi attested the
Will. Therefore, I am unable to countenance the arguments of
Mr.T.Sai Krishnan, learned Counsel for the respondent that the
evidence of D.W .2 does not satisfy the mandate of Section 63 of the
Indian Succession Act, 1925.
17.5.Merely because photographs are affixed, I do not see
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how this can be put against the propounder of the Will, to contend
that Will has not been duly executed or that it is surrounded by
suspicious circumstances. In fact, affixing of photographs is done
when the Will is registered, as part of formalities for registration.
Therefore, affixing the photographs in an unregistered Will, which
has been notarised by an Advocate and Notary public, in my
considered opinion, only adds more value to the Will and can never
be a ground to suspect the truth and genuineness of the Will.
17.6.With regard to the Will mentioning at Page No.3 that
the testatrix Thangammal has signed the Will but when the Will
does not contain the signature of Thangammal in any of the pages,
this again cannot be a ground to suspect the genuineness of the
Will. Admittedly, the thumb impression of Thangammal, who was
aged 95 years, at that relevant point of time, has been affixed in all
the pages. D.W .2 has clearly spoke about the Thangammal affixing
her Left Thumb Impression, besides also on the reverse of the first
page over the photograph of the Thangammal. In such
circumstances, a minor error in the contents of the Will mentioning
the testatrix signing the Will cannot be fatal to the case of the
appellants.
17.7.In fact, I find that eventhough it has been mentioned so,
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giving an impression that the testatrix has signed the Will, all the
pages of the Will specifically mention that the Left Thumb
Impression of Thangammal has been affixed. Therefore, it is only
an inadvertent error, while drafting the Will which can never be a
ground to challenge the Will. Hence, I am inclined to hold that the
Will has been duly proved in accordance with law and
consequently, share of Thangammal has been bequeathed to the
appellants, children of first defendant Krishnasamy. Therefore, the
plaintiff is not entitled to any share from and out of the
Thangammal's share. Therefore, Point Nos.2 & 3 are answered in
favour of the appellants and against the respondent.
18.Coming to the decisions, I have already discussed the
applicability of the ratio in Vineeta Sharma's case and how the
decision cannot be applied to this case when succession opened
even prior to the commencement of the Hindu Succession Act.
19.The Hon'ble Supreme Court in Eramma's case has also
held that devolution of ancestral properties of a male Hindu would
not be governed by the 1956 Act, when the death of the Kartha was
prior to 1956. The Hon'ble Supreme Court further held that the
1956 Act was only prospective. This ratio squarely applies to the
facts of the present case.
20.The Full Bench in Bombay High Court, in Rayachand's
case held that the defendant can take inconsistent pleas in a suit
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and it is for the Court to decide whether he is entitled to succeed in
any of them. Ratio laid down by the Full Bench has also been
approved by the Hon'ble Supreme Court in Chapsibhai's case.
Therefore, I do not see how the defendants on one hand taking a
stand that Thangammal did not have a share in the property,
cannot also take benefit under the Will executed by said
Thangammal. I have already rejected the arguments of the
appellants that Thangammal is not entitled to any share. Therefore,
Thangammal having a definite share in the suit properties was
entitled to execute her last Will and testament. From the foregoing
discussions it can be noticed that due execution, attestation of the
Will have also been upheld. Hence, the share of Thangammal would
go only by testamentory succession and not by intestate
succession, entitling the plaintiff to claim a share in Thangammal's
estate.
21.The Hon'ble Supreme Court in Muddasani Venkata
Narasaiah's case held that when no question is put forth to the
attesting witnesses as to the disposing state of mind of the
testatrix, then the witness account regarding the disposing state of
mind has to be presumed to be true.
22.In Palanisamy's case, this Court dealt with the
applicability of the Madras Hindu Women's Right to Property
[Extension to Agricultural Land) Act, 1947, with retrospective
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effect. This decision may not be relevant, since I have already held
that without any pleading in this regard, the additional written
statement having not been received by the trial Court, no amount
of evidence can be adduced.
23.In Ramnath Sao's case, the Hon'ble Supreme Court held
that prior to the coming into force of the Hindu Succession Act,
1956, the joint family property would continue to belong to the
family. This decision may not be of much relevance, since I have
already rendered a finding that the succession opened even prior to
the commencement of the Hindu Succession Act. This decision was
rendered in the context of allotment of share of a widow of the
original ancestor, who became entitled to a share in the joint family
property under the 1937 Act.
24.In Kanagalakshmi's case, this Court taking note of the
effect of 2005 Amendment Act, held that even though joint family
property had been partitioned between the father and sons alone,
under a registered partition deed, property was kept undivided for
common enjoyment of the family and 6 children were born after
partition deed including daughters. In such circumstances, taking
note of the 2005 amendment Act, this Court held that daughters
who are alive on 09.09.2005, would also become coparceners in the
father's share.
25.In Thenmozhi's case, the Division Bench of this Court
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held that the suit properties being ancestral properties, by virtue of
Hindu Succession Amendment Act, 2005, the daughter would be
entitled to an equal share along with her father in all joint family
properties. The Division Bench followed the ratio of the Hon'ble
Supreme Court in Vineeta Sharma's case in entitling the daughter
to coparcenery right and share in ancestral properties and held
that the Amendment Act, 2005, would apply to living daughters as
on 09.09.2005, irrespective of the date of birth of the daughter or
death of the father. Having already held that Vineeta Sharma's
case cannot be applied to the facts of the present case, I do not see
this decision would come to the rescue of the respondent.
26.In Murali's case, this Court held that when members of
family treated property as joint family property, mere deficiency in
pleadings or inadequate recitals in documents would not be
detrimental and property has to be held as joint family property
and eligible for partition.
27.In Shivakumar's case, the Hon'ble Supreme Court laid
down the principles governing the adjudicatory process concerning
the proof of Will. There is no quarrel either with regard to the ratio
laid down by the Hon'ble Supreme Court or the well settled
principles governing interpretation of Wills and their due execution
as required under law. On the facts of the case before the Hon'ble
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Supreme Court, the Hon'ble Supreme Court held that suspicious
circumstances exist and were unexplained and in such
circumstances, held that the Will was not proved. The said decision
cannot be applied to the facts of the present case.
28.In V .Prabhakara's case, the Hon'ble Supreme Court held
that relief can only be on the basis of the pleadings and evidence is
to be based on such pleadings alone. The only exception carved by
the Hon'ble Supreme Court is the case where the parties know
each other very well and the pleadings was implicitly an issue
before the Court. I have already applied the ratio laid down by the
Hon'ble Supreme Court by refusing to look into the pleadings in the
additional written statement, with regard to the State Act namely
the Madras Hindu Women's Right to Property Act, 1937.
29. This Court in Marimuthu's case, has also laid down the
importance of pleadings and held that what is not pleaded cannot
be proved and the said rule rests on a principle of fairness as no
party can be permitted to surprise the other side with something
which has not been pleaded. This Court further held that procedure
though handmaid of justice must only be understood as law of
fairness and under the head of substantial justice, rules of fairness
cannot be flouted. I have already applied this decision by holding
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that in the absence of pleadings additional evidence cannot be let
in.
30.For all the above reasons, the appellants are entitled to
succeed and the Appeal Suit is accordingly allowed. However,
considering the relationship between the parties, there shall be no
order as to costs. Consequently, the connected miscellaneous
petition is closed.
10.04.2026
Index : Yes / No
NCC : Yes / No
MR
To
1.The I Additional District Judge,
Coimbatore.
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2.The Section Officer,
VR Section,
Madras High Court,
Madras.
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P .B.BALAJI, J.
MR
PRE-DELIVERY JUDGMENT MADE IN
A.S.No.770 of 2023
10.04.2026
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