Will – Exclusion of daughter by testator is not a suspicious circumstance when testator has given reason for disinheritance of daughter-judge t ravinthireen appeal allowed

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K. Velusamy v. S. Rajalakshmi, (Madras) : Law Finder Doc Id # 1645212
MADRAS HIGH COURT
Before:- Mr. T.Ravindran, J.

A.S. No. 395 of 2010. D/d. 06.11.2019.

K. Velusamy – Appellant

Versus

S. Rajalakshmi – Respondent

For the Appellant :- Mr. T.P. Manoharan, Senior Counsel For M/s. K.P. Jotheeswaran, Advocate.

For the Respondent :- Mr. A.S.Vijayaraghavan, Advocate.

IMPORTANT

Will – Exclusion of daughter by testator is not a suspicious circumstance when testator has given reason for disinheritance of daughter.

Civil suit – Suit for declaration, partition and mesne profit – Suspicious circumstance – As per directions, scribe had prepared the Will and acknowledging the contents thereof executed the Will on his own volition – Both the attestors had witnessed the execution of the will obtainment of both the signatures and LTI in the will – Effect of uneven distribution of assets among children on the part of the testator by itself cannot be taken as suspicious circumstance – Disinheritance of plaintiff cannot be viewed as suspicious circumstance – Privilege/right of the testator to keep his/her Will secret will need not be compulsorily registered – Plaintiff is not entitled to claim any share in the item 4 of the plaint ‘A’ schedule properties and the plaint ‘B’ schedule properties and hold that the plaintiff is entitled to claim only half share in the plaint ‘C’ schedule properties and accordingly only with reference to the plaint ‘C’ schedule properties, the plaintiff is entitled to seek and claim of mesne profits and the same is relegated by way of a separate proceeding under Order 20 Rule 12 of Civil Procedure Code – Hence, appeal allowed.

[Paras 17 to 25]

Cases Referred :

A.E.G. Carapiet v. A.Y.Derderian, AIR 1961 Calcutt 359

K.Laxmanan v. Thekkayil Padmini, (2009) 1 SCC 354

Kamala Menon Cochran v. K.P. Ramachandra Menon, (2009) 7 MLJ 209

Mahesh Kumar (dead) by Lrs. v. Vinod Kumar, (2012) 4 SCC 387

JUDGEMENT

T.Ravindran, J. – Aggrieved over the judgment and decree dated 15.12.2009 passed in O.S.No.594/2006 on the file of the court of the First Additional District Court, Coimbatore, the defendant has preferred the first appeal.

2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.

3. Suit for declaration, partition and mesne profits.

4. Briefly stated, according to the case of the plaintiff, she is the sister of the defendant and both the plaintiff and the defendant are the children of Kandasamy Gounder and Subbammal @ Subbathal. Kandasamy Gounder’s father is Kaliappa Gounder and he had three more sons. The Hindu joint family of Kaliappa Gounder had ancestral lands of about 30 acres with well irrigation facility and out of the income derived from the ancestral lands, Kandasamy Gounder purchased agricultural lands by way of sale deeds dated 21.08.1974 and 19.08.1975 and the above said lands purchased by Kandasamy Gounder had been shown in the plaint ‘A’ schedule. However, Kandasamy Gounder had been treating the plaint ‘A’ schedule property as joint family properties along with ancestral lands and enjoying the same along with his children and never claimed any exclusive absolute right over the plaint ‘A’ schedule lands. Kaliappa Gounder and his four sons entered into the registered partition deed on 17.12.1975 and in the said partition, Kandasamy Gounder was allotted 5.88¾ acres together with rights in the five wells and Kandasamy Gounder and his son, namely, the defendant divided the above said ancestral lands amongst themselves as per the partition deed 18.03.1993 and in the said partition, Kandasamy Gounder was allotted 2.92 acres with the right in the well and motor pump sets and they are described in the plaint ‘B’ schedule and the remaining lands had been allotted to the share of the defendant, which are not the subject matter of the present suit. The lands described in the plaint ‘C’ schedule were purchased by Subbammal, the mother of the parties, by way of sale deed dated 09.08.1964 and enjoying the same as the absolute owner there of and she died on 08.09.1993 leaving behind her husband and the plaintiff and the defendant as her legal heirs and Kandasamy Gounder having died on 11.07.2003, resultantly, according to the plaintiff, she is entitled to the half share in the plaint ‘C’ schedule lands left by her mother. The plaint ‘B’ schedule lands was allotted to Kandasamy Gounder in the partition deed dated 18.03.1993, accordingly on his demise, the plaintiff is entitled to the half share in the plaint ‘B’ schedule lands. The plaint ‘A’ schedule lands had been purchased out of the income derived from the ancestral lands and Kandasamy Gounder having died on 11.07.2003, by virtue of the amendment to the Hindu Succession Act 1956, which came into effect from 09.09.2005, the plaintiff became the coparcener like a son, thereby entitled to claim half share in the plaint ‘A’ schedule lands. Due to the misunderstanding, the plaintiff sought for partition of her share in the plaint schedule properties and as the defendant failed to comply with her request and demand, she issued a legal notice on 22.09.2006 demanding partition. To the same, the defendant sent a reply dated 18.10.2006 containing false allegations. It is false to state that Kandasamy Gounder executed a registered settlement deed in favour of the defendant in respect of the Items 1 to 3 of plaint ‘A’ schedule lands and he is enjoying the same pursuant thereof and it is false to state the Kandasamy Gounder executed a will dated 18.08.2002 bequeathing all his properties in favour of the defendant and it is false to state that the plaintiff was provided with money and jewels as sridhana equivalent to the share in the properties at the time of the marriage and that after marriage, she was given other properties and cash for setting up power loom business is false and it is further false to state that on the demise of the mother,the defendant alone succeeded to the plaint ‘C’ schedule properties and that the defendant has prescribed title to the plaint ‘C’ schedule properties by way of the adverse possession and that he had developed the same by spending huge amount is also false and accordingly the plaintiff sent a rejoinder dated 24.11.2006 denying all the allegations set out by the defendant in the reply notice dated 18.10.2006 and also it is put forth by the plaintiff that at the time of effecting partition on 18.03.1993, the defendant had fraudulently obtained the deed of settlement in respect of the items 1 to 3 of plaint ‘A’ schedule lands from Kandasamy Gounder without disclosing the nature and character of the document and the recitals containing therein and Kandasamy Gounder had no intention to settle the above said properties in favour of the defendant and Kandasamy Gounder had no preference only to the defendant and he was equally affectionate to his daughter, the plaintiff, and the settlement deed relied upon by the defendant is not true and fraudulently obtained and therefore, it is illegal and invalid and despite the same, the revenue records continue to stand in the name of Kandasamy Gounder and therefore, the defendant cannot claim any right over the properties comprised in the abovesaid settlement deed. The defendant did not provide food and shelter to Kandasamy Gounder and Kandasamy Gounder was living separately and he was admitted in the hospital and taking inpatient treatment for his acute illness and he was mentally, physically incapacitated and not in a sound state of mind for about one year prior to his death and therefore, the will projected by the defendant dated 18.08.2002 is nothing but a forged, fabricated document and in the rejoinder the plaintiff sought for the production of a copy of the will dated 18.08.2002 said to have been executed by Kandasamy Gounder for perusal, however, the defendant failed to send a copy of the same. Again by another reminder dated 09.12.2006, the defendant was again required to send a copy of the will, however, no copy of the will has been sent and hence, according to the plaintiff she has been necessitated to lay the suit against the defendant for appropriate reliefs.

5. The defendant resisted the plaintiff’s suit and after admitting the relationship between the parties and denying the case projected by the plaintiff qua the claim of entitlement of the half share in the plaint schedule properties, admitted the purchase of lands by Kandasamy Gounder by way of the sale deeds dated 21.08.1974 and 19.08.1975 and further admitted the partition effected between Kandasamy Gounder and his brothers by way of the partition deed dated 17.12.1975 and also admitted the partition effected between Kandasamy Gounder and the defendant on 18.03.1993 and put forth the contention that inasmuch as the plaint ‘A’ schedule lands were the self acquired properties of Kandasamy Gounder, the same has not been included in the partition dated 18.03.1993. However admitted that it is only the mother Subbathal, who had acquired the plaint ‘C’ schedule properties under the sale deed dated 09.08.1964 and according to the defendant, after the demise of Subbathal, it is only he who is in the exclusive possession and enjoyment of the plaint ‘C’ schedule properties with open knowledge and hostile manner against the plaintiff and the plaintiff’s right had been defeated by the defendant by ouster and therefore, the claim of the share of the plaintiff in the plaint ‘C’ schedule properties is unsustainable. Further disputed the claim of the plaintiff that she is entitled to equal share in the plaint ‘A’ schedule properties by virtue of the amendment effected to the Hindu Succession Act 1956 with effect from 09.09.2005. Further put forth the case that since the original will had been produced in the District Munsif Court, Palladam, in pending suit, the defendant is unable to give a copy of the same to the plaintiffs as requested. According to the defendant, Kandasamy Gounder executed the registered settlement deed in his favour in respect of the items 1 to 3 of the plaint ‘A’ schedule properties by virtue of the settlement deed dated 18.03.1993. Thereafter, the said properties got mutated in the name of the defendant and further put forth the case that Kandasamy Gounder had executed a will in his favour on 18.08.2002 and bequeathed the entire properties in his favour and accordingly after the demise of Kandasamy Gounder on 11.07.2003, he had acquired the properties under the will and enjoying the same. The plaintiff is fully aware of the above said settlement deed and also the execution thereof and also put forth the case that the plaintiff at the time of the marriage was provided with adequate seer of money and jewels and after the marriage also, she was given various sums for the purpose of starting power loom business. The plaintiff had suppressed the same and come forward with the false suit. The defendant further disputed the case of the plaintiff that Kandasamy Gounder was not keeping good health for about a year prior to his demise and it is stated by him that Kandasamy Gounder died suddenly due to heart attack and it is put forth that the plaintiff was not affectionate with Kandasamy Gounder and not maintaining cordial terms with him as well as the defendant for several years and not even attended the funeral ceremonies of Kandasamy Gounder and further put forth that the suit laid by the plaintiff is barred by limitation and accordingly prayed for the dismissal of the plaintiff’s suit.

6. On the basis of the abovesaid pleas set out by the respective parties, the following issues were framed for consideration.

1. Whether the plaintiff is entitled for the declaration that the registered settlement deed executed by Kandasamy Gounder in favour of the defendant dated 18.03.1993 is null and void?
2. Whether the plaintiff is entitled for half share in the schedule mentioned properties?
3. Whether the plaintiff is entitled for the mesne profits in respect of the half share in the suit properties?
4. To what relief?
7. In support of the plaintiff’s case, P.Ws.1 and 2 were examined, Exs. A1 to A20 were marked. On the side of the defendant, D.Ws. 1 to 3 were examined and Exs.B1 to B120 were marked.
8. On a consideration of the oral and document evidence adduced by the respective parties and the submissions made, the trial court was pleased to declare that the plaintiff is entitled to half share in the item 4 of the plaint ‘A’ schedule properties and the plaint ‘B’ and ‘C’ schedule properties and accordingly with reference to the mesne profits, directed the same to be determined by way of a separate enquiry under Order 20 Rule 12 of CPC and accordingly granted the preliminary decree in favour of the plaintiff without costs. Impugning the same, the defendant has preferred the first appeal.

9. The following points arise for determination in the first appeal.

1. Whether the will dated 18.08.2002 is true, valid and binding on the the plaintiff?
2. Whether the defendant has prescribed title to the plaint ‘C’ schedule properties?
3. Whether the plaintiff is entitled to claim partition and separate possession of half share in item 4 of the plaint ‘A’ schedule and the plaint ‘B’ and ‘C’ schedule properties as claimed in the plaint?
4. Whether the plaintiff is entitled to claim mesne profit from the defendant as prayed for?
5. To what relief the plaintiff is entitled to?
6. To what relief the defendant / appellant is entitled to?
Point No.1
10. The plaintiff is the sister of the defendant and both the plaintiff and the defendant are the children of Kandasamy Gounder and Subbammal. There is no dispute with reference to the above said relationship between the parties. It is admitted between the parties that Kandasamy Gounder had acquired the plaint ‘A’ schedule properties by virtue of the sale deeds dated 21.08.1974 and 19.08.1975, the copies of the above said sale deeds had been marked as Exs.A1 and A2. It is also admitted that Kandasamy Gounder’s father Kaliappa Gounder had 4 sons inclusive of Kandasamy Gounder and they all had effected a partition in respect of the ancestral properties by way of the registered partition deed dated 17.12.1975 and the abovesaid partition deed has been marked as Ex.A3. It is also not in dispute that subsequently Kandasamy Gounder and the defendant had effected a partition amongst themselves in respect of the ancestral lands by way of the partition deed dated 18.03.1993 and in the abovesaid partition, Kandasamy Gounder had been allotted the plaint ‘B’ schedule properties. The copy of the abovesaid partition deed has been marked as Ex.A4 and the original partition deed has been marked as Ex.B5. Though the plaintiff has put forth the case challenging the settlement deed dated 18.03.1993 executed by Kandasamy Gounder in favour of the defendant in respect of the items 1 to 3 of the plaint ‘A’ schedule properties and contended that the abovesaid settlement deed had been obtained by the defendant from Kandasamy Gounder without divulging the contents thereof in a fraudulent manner at the time of Ex.A4/B5 partition deed and also sought for the relief of declaration as prayed for in the suit, it is found that during the course of arguments, the plaintiff has conceded that the settlement deed dated 18.03.1993 had been acted upon and that she is not claiming any share over the properties covered under the abovesaid settlement deed. The abovesaid settlement deed has been marked as Ex.B6 and the copy of the same has been marked as Ex.A14. It is thus found that Exs.B6/A14 pertains to items 1 to 3 of the plaint ‘A’ schedule properties. Therefore, when the plaintiff has given up the case as regards the properties comprised in Ex.B6/A14 settlement deed, it is found that as regards the properties left behind by the father, namely, Kandasamy Gounder, the parties are at issue only with reference to the item 4 of the plaint ‘A’ schedule properties and the plaint ‘B’ schedule properties. As regards the plaint ‘C’ schedule properties, the same having been admitted to be the separate properties of the mother, namely, Subbammal, the issue with reference to the same is determined under point No.2. According to the plaintiff, she is entitled to claim half share in item 4 of the plaint ‘A’ schedule properties and the plaint ‘B’ schedule properties as one of the legal heirs of Kandasamy Gounder and also by virtue of the amendment effected to the Hindu Succession Act 1956, which came into effect from 09.09.2005. The abovesaid case of the defendant has been resisted by the defendant by putting forth the case that Kandasamy Gounder, during his life time, had executed a will in his favour in respect of the properties on 18.08.2002 and therefore, after the demise of Kandasamy Gounder, it is only the defendant, who is entitled to succeed to his properties by virtue of the abovesaid will. Therefore, the plaintiff is not entitled to claim any share in the said properties. It is not in dispute that Kandasamy Gounder had died on 11.07.2003 and his death certificate has also been marked as Ex.A7 and the will dated 18.08.2002 has been marked as Ex.B7. The plaintiff has disputed the truth and validity of Ex.B7 will and according to the plaintiff, Kandasamy Gounder was not maintaining good health for about a year prior to his demise and therefore, contended that the abovesaid will was not executed by Kandasamy Gounder in a dispensing state of mind and further according to the plaintiff Kandasamy Gounder was equally affectionate towards his daughter and therefore, there is no reason on his part to disinheritant her in succeeding to his properties and further according to the plaintiff, the defendant was not looking after Kandasamy Gounder and not providing any food or shelter to him and therefore, there is no need for Kandasamy Gounder to bequeath all his properties in favour of the defendant exclusively and for the abovesaid reasons, according to the plaintiff, the will projected by the defendant marked as Ex.B7 is a forged and fabricated document.

11. In the light of the abovesaid factors, when the defendant disputes the entitlement of the plaintiff’s claim of share in the item 4 of the plaint ‘A’ schedule properties and the plaint ‘B’ schedule properties by projecting Ex.B7 will and when the plaintiff is challenging the truth and validity of the abovesaid will, in the light of the abovesaid rival contentions put forth by the respective parties, it is found that the defendant, as the propounder of the will Ex.B7, the duty is cast upon the defendant to establish the truth and validity of the same as per law. Accordingly ,to sustain his case, the defendant has examined one of the attestors to the abovesaid will, namely, C.Malyilsamy, as D.W.2. With reference to the execution of the will by Kandasamy Gounder in a fit state of mind voluntarily on his own volition, D.W.2 C.Mayilsamy, tendered evidence and his evidence with reference to the will as adduced in the chief examination is extracted below:

fe;jrhkp ft[z;lh; kpFe;j cly;eyf; Fiwthy; mtUila brhj;Jf;fis gpujpthjp ntYr;rhkpapd; bgaUf;F capy; rhrdk; vGjp itf;f ntz;Lk; vd;Wk; vd;dplKk; kapy;rhkpaplKk; Twpdhh;/ NY}h; rhh; gjpthsh; mYtyfj;jpy; cs;s gj;jpu vGj;jiu itj;J vGjpdhy; tpcak; midtUf;Fk; bjhpe;J tpLk; vd;gjw;fhf btspa{h; brd;W gjpt[ bra;ahky; capy; kl;Lk; vGjp itj;Jf; bfhs;syhk; vd;W fe;jrhkp ft[z;lh; Twpajhy; ehDk; kapy;rhkpa[k; fle;j 18/08/2002 md;W fe;jrhkp ft[z;liu miHj;Jf; bfhz;L nfhit fhl;Lh; u’;fnfhdhh; tPjpapy; cs;s Mtz vGj;jh; M.A. me;njhzp Mfpathplk; miHj;Jr; brd;nwhk;/ Mtz vGj;jh; ,lk; fe;jrhkpf; ft[z;lh; brhj;Jf;Fhpa Mtz’;fis bfhLj;jhh;/ fe;jrhkp ft[z;lh; Twpago Mtz vGj;jh; capy; jahhpj;J goj;Jf; fhl;odhh;/ mg;bghGJ fe;jrhkpf; ft[z;lUf;F brl;oy;bkz;l; bfhLj;j gj;jpuk; mtuJ iftrk; ,y;yhjjhy; mjd; brhj;J tptu’;fis gw;wp rhpahf tptuk; Tw Koahjjhy; Mtz vGj;jh; midj;Jr; brhj;Jf;fisa[k; Fwpg;gpl;L tplyhk; vd;Wk;/ ntYr;rhkpf;F Vw;fdnt bfhLj;j brhj;ija[k; nrh;j;J capypy; Fwpg;gpl;lhy; mjdhy; capy; ghjpf;fhJ vd;Wf; Twp capy; Mtzk; jahh; bra;J fe;jrhkp ft[z;lh; Kd;g[k; rhl;rpfshd vd; Kd;g[k; kw;Wk; kapy;rhkp Kd;g[k; Mtz vGj;juhy; goj;Jf; fhl;lg;gl;L fe;jrhkp ft[z;lh; rhpahf cs;sJ vd;W Mtzj;jpy; cs;s tptu’;fis g[hpe;Jf; bfhz;L xg;g[f; bfhz;L ey;y Ra g[j;jpa[ld; rpe;jida[ld; me;j capy; rhrdj;jpy; xt;bthU gf;fj;jpd; fPGk; fe;jrhkp ft[z;lh; ifbaGj;J bra;Jk; ifnuif itj;Jk; v’;fs; Kd; capiy epiwntw;wpdhh;/ mjw;F rhl;rpahf Kjypy; kapy;rhkpa[k; ,uz;lhtjhf ehDk; rhl;rp ifbaGj;J nghl;nlhk;

On a reading of the abovesaid evidence adduced by D.W.2,the attestor, it is found that the initiative for preparing and executing Ex.B7 will has been made only at the instance of Kandasamy Gounder and accordingly he had solicited the assistance of the attestation of both attestors, namely, Mayilsamy, and inasmuch as Kandasamy Gounder desired to maintain the secrecy of the will to be executed by him accordingly, had chosen to prepare the will outside the village and accordingly it is found that he had been taken to the scribe of the will, namely, one Anthoni and accordingly, based on the instructions given by Kandasamy Gounder, the testator, and the documents produced by him, it is found that the will had been prepared by the document writer and as at that point of time as Kandasamy Gounder was not possessed of the settlement deed effected in favour of his son, it is found that he was unable to describe the properties settled in favour of his son namely the defendant by virtue of the settlement deed, however, as the scribe had represented that the will would not be affected even if the properties settled in favour of the defendant are also included in the will and accordingly it is found that as per the direction of Kandasamy Gounder, the will had been prepared bequeathing the properties in favour of the defendant and after the contents of the will were read over to the testator Kandasamy Gounder and the same having been acknowledged by him, it is found that Kandasamy Gounder in a fit state of mind and accordingly executed the will in the presence of the attestors and the attestors in turn had also attested the same in his presence and therefore, it is found that considering the evidence of D.W.2, as adduced by him qua the execution of the will by the deceased Kandasamy Gounder, in such view of the matter, when the evidence of D.W.2 has not been undermined or shaken in any manner during the course of cross examination on the part of the plaintiff qua the execution of the will by Kandasamy Gounder, in such view of the matter, it is found that as rightly put forth by the defendant’s counsel, based on the evidence of the attestor, D.W.2, it is found that the defendant has established the truth and validity of the same as contemplated under law and therefore, it is seen that by projecting the evidence of the attestor, D.W.2, the defendant has discharged his burden of establishing the truth and validity of Ex.B7 will. On a reading of the judgment of the trial court, it is found that even the trial court has not found any valid reason to discredit the evidence of D.W.2 with reference to his evidence as regards the execution of the will by Kandasamy Gounder and the attestation of the same by D.W.2 and the other attestor as contemplated under law and the trial court has concluded the discussion about the will by holding that in view of the suspicious circumstances attached to the will accordingly held that merely on the basis of the evidence of D.W.2, it cannot be held that the will has been proved beyond any doubt or suspicion. Therefore, it is found that the trial court has found no acceptance with Ex.B7 will only on the suspicious circumstances said to have been surrounding the said will and therefore, it has to be seen whether the suspicious circumstances found by the trial court circumventing Ex.B7 will are sustainable and entitled for acceptance.

12. The plaintiff has put forth the case that her father Kandasamy Gounder was not maintaining good health for about a year prior to his death and therefore, he was physically and mentally incapacitated and therefore, contended that the will would not have been executed by him in a fit state of mind and in a good health and on that ground, challenged the truth and validity of Ex.B7 will dated 18.08.2002. Kandasamy Gounder is found to have died on 11.07.2003. It is thus found that a year after the execution of the will in question, Kandasamy Gounder had died. The plaintiff during the course of her evidence as adduced in the cross examination has admitted that her father was engaged in the cultivation work in a fit state of health till his demise and she has produced no document evidencing that her father was not maintaining good health and according to her, the said documents are available with the defendant and therefore, when according to the plaintiff her father was engaged in the cultivation work with all vigour till his demise, to say that her father was not maintaining good health for about a year prior to his demise, as such, cannot be accepted in any manner. If really, Kandasamy Gounder was not maintaining good health as put forth by the plaintiff, the plaintiff would have come forward in a clear manner as to the nature of the illness said to have been inflicted on Kandasamy Gounder and the treatment taken by him with reference to the same. Other than very vaguely stating that he was not maintaining good health for about a year prior to his demise, the plaintiff has not endeavoured to explain the nature of the illness said to have been sustained by Kandasamy Gounder and also not pleaded whether any treatment had been taken by him with reference to the same and furthermore, as abovenoted, the plaintiff has not placed any material to show that her father was taking any treatment qua his alleged bad health. In such view of the matter, the claim of the plaintiff that her father was not maintaining good health for about a year prior to his demise, as such, cannot be believed and accepted. From the evidence adduced by D.W.2, the attestor, it is found that Kandasamy Gounder was in a fit state of mind at the time of the execution of Ex.B7 will and it is further found that only as per his directions, the scribe had prepared the said will and acknowledging the contents thereof, Kandasamy Gounder, according to D.W.2, has executed the will on his own volition. When the abovesaid evidence of D.W.2 has not been shown to be unacceptable or untrue by culling out any material at the time of his cross examination in support of the plaintiff’s case, in all, it is found that the alleged ill health attributed to Kandasamy Gounder on the part of the plaintiff prior to his demise, as such, cannot be believed and accepted. No doubt, D.W.2 has also deposed that Kandasamy Gounder had decided to execute the said will on account of his poor health, it is found that the abovesaid evidence of D.W.2 has to be read in consonance with the age of Kandasamy Gounder at the time of execution of Ex.B7 will and therefore, merely because at that point of time Kandasamy Gounder was not maintaining good health as spoken to by D.W.2, it cannot be construed as if he was not in a fit state of mind to execute the will knowing the contents thereof and when the mental capacity and physical capacity of Kandasamy Gounder had been clearly spoken to by D.W.2 as above pointed out, in all, it is found that Ex.B7 will had been executed by Kandasamy Gounder on his own volition and in a fit state of mind and health .

13. The trial court has commented upon the obtainment of both the signatures of Kandasamy Gounder and his LTI in the will. No doubt, it is found that both the signatures and LTI of Kandasamy Gounder had been obtained in Ex.B7 will. One is unable to find any infirmity or abnormality in the obtainment of signatures and the LTI of the testator concerned in the will. On the other hand, it only reinforces the case of the defendant that the will in question had been, indeed, executed by Kandasamy Gounder in a fit state of mind and health knowing the contents thereof and therefore, I do not find any serious infirmity in the obtainment of both the signatures and LTI of the testator in the will under challenge.

14. As above pointed out, as regards the execution of the will in question by the testator, when it is found that D.W.2 has spoken about the same in a clear and acceptable manner and nothing has been culled out from him during the course of cross examination to undermine his evidence or discredit his evidence with reference to the execution of the will by Kandasamy Gounder after knowing the contents of the same in a fit state of mind on his own volition and it is further seen that both the attestors had witnessed the execution of the will by Kandasamy Gounder and the factum of their attestation has also been spoken to at that point of time by D.W.2 in a clear manner and when, as above pointed out, the plaintiff has not established any serious illness on the part of Kandasamy Gounder at the time of execution of the will and when Kandasamy Gounder is found to have died normally a year after the execution of the will, despite the abovesaid factors, if still the plaintiff is entertaining a doubt regarding the true execution of the will by Kandasamy Gounder, when the defendant has discharged his burden to establish the truth and validity of the will in question as per law by examining the attestor D.W.2, in such view of the matter, even if therafter, the plaintiff is harping upon the truth and validity of the same, nothing prevented the plaintiff from subjecting the signatures and the LTI of Kandasamy Gounder found in Ex.B7 will by way of expert’s scrutiny. On the other hand, the trial court seems to have found fault with the defendant for not subjecting the signatures of Kandasamy Gounder and particularly the LTI in the will by way of expert’s scrutiny. As rightly put forth by the defendant’s counsel, when the defendant has discharged his burden of proof qua the truth and validity of the will in question by examining the attestor concerned as contemplated under law and when the evidence of the attestor is found to be acceptable in all factors, particularly, qua the execution of the will by the testator concerned, if even thereafter, the plaintiff is still challenging the truth and validity of the same, the burden would only shift upon the plaintiff to place the materials with reference to the same either by way expert’s scrutiny or by way of the other materials. In such view of the matter, the endeavour of the trial court in finding fault on the part of the defendant in not taking steps to compare the thumb impression of the testator in the will concerned by way of expert’s scrutiny, as such, cannot be countenanced and the abovesaid approach of the trial court is found to be not in consonance with law.

15. The trial court has commented upon the disinheritance of the property in favour of the plaintiff by the testator Kandasamy Gounder equally. The trial court has also found that Kandasamy Gounder has given reasons in the will for the disinheritance of daughter, namely, the plaintiff. When it is found that the plaintiff has been provided with adequate seer at the time of marriage and also subsequently accordingly it is found that Kandasamy Gounder had chosen to bequeath his properties in favour of his only son, the defendant, in such view of the matter, as rightly put forth by the defendant’s counsel and also reported in the decision reported in (2009) 7 MLJ 209 (Kamala Menon Cochran v. K.P. Ramachandra Menon and others), uneven distribution of assets among children on the part of the testator by itself cannot be taken as suspicious circumstance and accordingly when the reasons for deviating from the normal line of succession are stated in the will itself, the same should be accepted. Therefore, the mere factor that the plaintiff has been disinherited under the will Ex.B7, cannot be viewed as suspicious circumstance for discrediting the same.

16. The trial court has taken a view that there is no need on the part of the testator to maintain any secrecy about the execution of the will. The above said reason of the trial court stemmed from the fact that inasmuch as Kandasamy Gounder had executed the partition deed and the settlement deed projected in the matter to the knowledge of the plaintiff and the plaintiff has attested the above said documents, opined that Kandasamy Gounder need not maintain any secrecy qua the execution of the will and therefore, proceeded to hold that if really he had chosen to execute the will, he would have executed the same to the knowledge of the plaintiff. However, when according to the defendant, the plaintiff was not maintaining a good and cordial relationship with Kandasamy Gounder at the relevant point of time and the partition deed and the gift deed had taken place on 18.03.1993, nearly 10 years prior to the execution of the will in question, whereas the will in question had been executed on 18.08.2002 and when according to the defendant, the plaintiff was not maintaining a good relationship with the father at the relevant point of time, accordingly, it is found that there is a need on the part of the testator to maintain secrecy in the execution of the will if he so desires and accordingly he had expressed the said desire to the attestors concerned , accordingly, it is found that the will had come to be executed at the place of the scribe. Therefore, in the light of the decision reported in (2009) 7 MLJ 209 above referred to, it is found that it is the privilege and the right of the testator / testatrix to keep his/her will secret, if he/she so desires and the execution of the will by not disclosing the factum to others cannot be treated as suspicious circumstance in the context of the facts of the particular case. Therefore, in my considered opinion, the mere fact that Ex.B7 will had been executed without the knowledge of the plaintiff in secrecy by the testator and when it is found that the same had been done only as per the wish and at the instance of the testator as clearly spoken to by D.W.2, in such view of the matter, the abovesaid alleged suspicious circumstance attributed to Ex.B7 will cannot be sustained as such and therefore, the same cannot be put forth for undermining the truth and validity of Ex.B7 will as such.

17. No doubt, there is a contradiction in the evidence of the attestor D.W.2 as regards the place where the will in question had been typed. According to D.W.2, it is the scribe who had prepared the will and typed the same at the place where the will was written. However, it is found that the will was typed elsewhere. The abovesaid contradiction has been held to be the suspicious circumstance surrounding the execution of Ex.B7 will. No doubt, there is a contradiction in the evidence of D.W.2 qua the place where the will had been typed. However, when the evidence of D.W.2, qua the execution of the will by the testator concerned in a fit state of mind knowing the contents thereof as per his terms and accordingly acknowledging the same, he having executed the will concerned and the attestation of the same by the attestors concerned, in such view of the matter, the inconsistencies in the case projected by the plaintiff through the evidence of D.W.2 as regards the place where the will had been typed, in my considered opinion, cannot be put forth as a serious factor for undermining or discrediting the will in question as a fabricated and forged document. When the execution of the will has been clearly spoken to and testified by the attestor D.W.2, as above pointed out, in such view of the matter, the contradictions in his evidence qua the place where the will had been typed cannot be assumed and blown out of proportion so as to discredit the will in question in toto when the abovesaid contradiction does not touch upon the execution of the will as such on the part of the testator in a fit state of mind and on his own volition after knowing the contents of the same, therefore, in my considered opinion, the abovesaid contradiction cannot be characterised as a serious suspicious circumstance for disbelieving the will in question.

18. The other suspicious circumstance put forth by the trial court on the truth and validity of the will is that some of the properties which had been already settled in favour of the defendant by the testator, had also been included in the will. However, in my considered opinion, the abovesaid inclusion of the properties which had already been settled in favour of the defendant in the will under challenge, would not, in any manner undermine the truth and validity of the same. When with reference to the same, D.W.2 has tendered clear evidence explaining that at that point of time Kandasamy Gounder was not having the settlement deed in his custody and as the scribe had apprised him that the will would not be affected even if the properties already settled in favour of the defendant are included therein, accordingly, it is found that on the abovesaid reasoning of the scribe, the will had come to be prepared and executed by Kandasamy Gounder with the assistance of the scribe concerned and accordingly he had proceeded to execute the will. Therefore, merely on the factor that some of the properties which had already been settled in favour of the defendant under the settlement deed had also been included in the will, the same cannot be characterised as the serious suspicious circumstance surrounding the same. As to how come the abovesaid additions had come to be made in the will qua the settled properties had been explained by the attestor himself during the course of evidence as at that relevant point of time Kandasamy Gounder was not having the settlement deed in his custody, therefore, the observation of the trial court that the abovesaid factors exposes the hurried preparation and execution of the will as such cannot be countenanced, particularly, when the natural execution of the will by the testator concerned has been spoken to by the attestor in a clear and plausible manner. In addition to that, when the attestor had also spoken to the reasons with reference to the same as above pointed out, in such view of the matter, the abovesaid factor cannot be termed as suspicious circumstance for disbelieving the will in question.

19. The trial court has also commented upon the non registration of the will in question. The will need not be compulsorily registered. Merely because the testator had chosen to execute and register the partition deed and the settlement deed effected during the year 1993, the same analogy cannot be extended to the will in question. As abovenoted, when the testator had chosen to maintain the secrecy in the execution of the will, accordingly, it is found that he has not chosen to register the same. In such view of the matter, the non registration of the will by itself, cannot be attributed as a factor for disbelieving the case projected by the defendant with reference to Ex.B7 will.

20. The comment has also been made by the trial court that the margin of lines in the will is not regular as spoken to by D.W.2 and therefore, the will would not be a true document. However, on a perusal of the will in question, it is found that there is no wide margin of lines as sought to be put forth by the plaintiff and determined by the trial court and when the will is found to be consisting 6 pages and accordingly the will is found to be typed and executed in the normal fashion without any reason of doubt or suspicion with reference to the same, the alleged difference in the margin found in the last page of the will, in my considered opinion, has been blown out of proportion for discrediting the same. When the execution of the will is found to be done naturally as spoken to by D.W.2, the abovesaid factor also cannot be alleged to be a suspicious circumstance surrounding the will.

21. D.W.2, during the course of his evidence has spoken to about the apprisement of the will in question to the plaintiff at the time of the death of Kandasamy Gounder. No doubt, D.W.1 has not deposed on the same lines. The abovesaid contradiction in the evidence of D.W.1 and D.W.2 as regards the passing of information of the will to the plaintiff at the time of the death of the father cannot be regarded as a suspicious circumstance surrounding the will and therefore, the comment by the trial court on the same touching upon the truth and validity of the will, as such, cannot be accepted in any manner.

22. The materials placed on record go to show that the father was living separately and the defendant was living separately. There is no material that the plaintiff was taking care of the needs of the father. It is equally found that there is no material to show that the defendant has completely ignored the father. Therefore, merely on the factor that the testator, namely, Kandasamy Gounder and the defendant were living separately, when it is found that they are living nearby adjacent to each other, on that ground, it cannot be held that the defendant has neglected his father and therefore, there is no necessity on the part of Kandasamy Gounder to bequeath his properties in favour of the defendant. When Kandasamy Gounder had given acceptable reasons for disinheriting the plaintiff and when he is blessed with only one son, namely, the defendant, and when there is no material as such showing that the relationship between Kandasamy Gounder and the defendant had become strained and unsmooth, in such view of the matter, it is found that Kandasamy Gounder had chosen to bequeath his properties in favour of the defendant and accordingly had executed Ex.B7 will in favour of the defendant and therefore, the mere factor that Kandasamy Gounder was maintaining separate residence, by itself, would not be a ground for disbelieving the truth and validity of Ex.B7 will as such.

23. The plaintiff’s counsel in support of his contentions placed reliance upon the decision reported in (2012) 4 SCC 387 (Mahesh Kumar (dead) by lrs. v. Vinod Kumar and others) and AIR 1961 Calcutt 359 ( A.E.G. Carapiet v. A.Y.Derderian). Per contra, the defendant’s counsel placed reliance upon the decision reported in (2009) 1 SCC 354 (K.Laxmanan v. Thekkayil Padmini and others). The principles of law outlined in the abovesaid decisions are taken into account and followed as applicable to the case at hand.

24. In the light of the abovesaid discussions, I hold that the defendant has established the truth and validity of Ex.B7 will by examining the attestor as contemplated under law and when nothing has been culled out from the mouth of the attestor to discredit his evidence in any manner and when the alleged suspicious circumstances surrounding the will Ex.B7 are found to be not importing suspicion as such for discrediting the will, particularly, qua the execution of the same on the part of the testator in a fit state of mind and health and on his own volition as abovediscussed, in such view of the matter, I hold that the trial court has erred in disbelieving Ex.B7 will on the ground that the same is beset with suspicious circumstances as determined by it and hence the abovesaid finding of the trial court is set aside, resultantly, I hold that the will dated 18.08.2002 is true, valid and binding on the plaintiff.

Point No.2

25. It is not in dispute that the plaint ‘C’ schedule properties belonged to the mother Subbammal. The mother has died intestate. Thus it is found that both the plaintiff and the defendant would be entitled to secure half share in the plaint “C’ schedule properties as the descendants of their mother. However, according to the defendant, after the demise of the mother, it is only he who had been exclusively enjoying the plaint ‘C’ schedule properties over a considerable period of time and thereby pleaded that he had prescribed title to the plaint ‘C’ schedule properties by way of the adverse possession and ouster. The above said case projected by the defendant has been stoutly resisted by the plaintiff. As held by the trial court, when it is found that as regards the plaint ‘C’ schedule properties, both the plaintiff and the defendant are the co-owners, if the defendant seeks to exclude the plaintiff’s entitlement to the same by taking the plea of adverse possession and ouster, the defendant should place acceptable and reliable records as to from which date onwards, he had been exercising the above said exclusive right and whether the same had been exercised by him overtly to the knowledge of the plaintiff and when it is found that the revenue records projected by the defendant had emanated only during 2005 barring a few tax receipts of 1999 and the same has also been standing in the name of the mother, in such view of the matter, as rightly held and determined by the trial court, the revenue documents projected by the defendant would not prove his exclusive possession of the same and when it is a settled law that the possession of the one co-owner is deemed to be the possession of the other co-owner and merely because one co-owner is put in the enjoyment of the joint property by paying tax and electricity bills, that alone, would not amount to the ouster. In such view of the matter, the trial court is found to be justified in declining the plea of adverse possession and ouster put forth by the defendant for claiming independent title to the plaint ‘C’ schedule properties and considering the materials placed on record and when the same had been properly assessed and analysed by the trial court and rightly disbelieved the plea of ouster put forth by the defendant, in such view of the matter, I do not find any reason to interfere with the determination of the trial court in disbelieving the claim of exclusive title put forth by the defendant qua the plaint ‘C’ schedule properties by way of the adverse possession and ouster. I therefore concur with the determination of the trial court that the plaintiff and the defendant are entitled to claim equal share in the plaint ‘C’ schedule properties as the legal decedents of Subbammal, the mother. I therefore hold that the defendant has failed to establish that he has prescribed title to the plaint ‘C’ schedule properties by way of the adverse possession and ouster as put forth in the written statement. Accordingly the point No. 2 is answered.

Point Nos. 3 & 4

26. In the light of the answers to point numbers 1 and 2, I hold that the plaintiff is not entitled to claim any share in the item 4 of the plaint ‘A’ schedule properties and the plaint ‘B’ schedule properties and hold that the plaintiff is entitled to claim only half share in the plaint ‘C’ schedule properties and accordingly only with reference to the plaint ‘C’ schedule properties, the plaintiff is entitled to seek and claim of mesne profits and the same is relegated by way of a separate proceeding under Order 20 Rule 12 of CPC. Accordingly, the point numbers 3 and 4 are answered.

Point Nos. 5 & 6.

27. The judgment and decree dated 15.12.2009 passed in O.S.No.594/2006 on the file of the court of the First Additional District Court, Coimbatore, are set aside as regards the item 4 of the plaint ‘A’ schedule properties and the plaint ‘B’ schedule properties and resultantly I hold that the plaintiff is entitled to claim half share only in respect of the plaint ‘C’ schedule properties and the mesne profits in respect of the plaint ‘C’ schedule properties and the preliminary decree is accordingly passed in favour of the plaintiff. The suit laid by the plaintiff is dismissed as regards the item No.4 of the plaint ‘A’ schedule properties and the plaint ‘B’ schedule properties. The determination of the mesne profits is relegated to a separate proceeding under Order 20 Rule 12 of CPC.

28. Accordingly, the first appeal is allowed. Considering the facts and circumstances of the case, there is no order as to costs. Consequently, connected miscellaneous petition, if any is closed.

Appeal allowed.