M KANDIAH PILLAI Vs. S MEHALINGAM

JUDGEMENT

(1.) THE plaintiff in O.S. No. 269 of 1983 on the file of District Munsif Court, Tirunelveli filed the second appeal. Pending second appeal, he died and his legal representatives have come on record as appellants 2 to 7 and respondents 7 and 8. THE suit was filed for declaration of the plaintiff's title to the plaint second schedule property and for permanent injunction restraining the defendants, who are respondents 1 to 6 herein from interfering with his possession and enjoyment of the second schedule property. His case was as follows: THE schedule properties along with other properties originally belonged to his mother one Arunachalathammal. Arunachalathammal executed a Will on 18.11.1966 in respect of the plaint schedule properties and other properties. As per the terms of the Will the plaintiff was entitled to the first schedule property excluding the second schedule. Some time later, Arunachalathammal felt that no provision had been made for a house to the plaintiff and also no provision had been made for common enjoyment of the properties to the plaintiff's brothers Venkatachalam Pillai and Sankaran Pillai. She cancelled the Will dated 18.11.1966 and executed another Will on 9.1.1967, as per the terms of which the plaintiff became entitled to the first schedule property including the second schedule. THE attestors of both the Wills are the same. THE Will dated 9.1.1967 was the last Will of Arunachalathammal. She died in 1967. Though the Will had been executed on 9.1.1967, the plaintiff came to know about it only in the third week of December, 1981. THE heirs of the plaintiff's brother Venkatachalam Pillai found out the Will dated 9.1.1967 only in the third week of December, 1981 along with other documents and papers in the house. THEy gave them to the plaintiff. Immediately thereafter the plaintiff called the heirs of his brothers including the defendants, who are the sons of the plaintiff's third brother Sudalai Adum Perumal Pillai. He showed the Will dated 9.1.1967 and the allotment of properties therein. All the parties including the defendants agreed to act and enjoy the properties as per the terms of the Will dated 9.1.1967. Even from 1966 the plaintiff had been in continuous possession and enjoyment of the second schedule property till the date of filing of the suit. He had been paying the tax for the schedule properties including the second schedule. On 30.6.1981 the plaintiff executed a gift deed in favour of his daughter in respect of 10 cubic feet on the southern side of the first schedule property. He also executed a mortgage deed on 5.6.1982 in respect of the schedule properties in favour of Selvakamatchi, wife of one Sankaranarayanan. THE Will came into force in the last week of December, 1981 and the parties also acted as per the terms of the same. However, the defendants wanted to give trouble to the plaintiff and on 27.2.1983 the first and the 6th defendants came to the plaintiff's house and tried to interfere with his peaceful possession and enjoyment of the second schedule property by denying his title to the same. THE suit was therefore instituted for the reliefs already mentioned.

(2.) THE 6th defendant filed a written statement and defendants 1, 3 and 5 adopted the same. Defendants 2 to 4 remained ex parte. THE averments in the written statement of the 6th defendant are as follows: THEre was no second Will dated 9.1.1967. It was a cooked up document with the connivance of the same scribe and attestors of the Will dated 18.11.1966. THE plaintiff was claiming the plaint second schedule property belonging to the defendants. THE defendants had learnt that the plaintiff had taken the thump impression of Arunachalathammal in her death bed, prepared a Will with the help and connivance of the scribe and attestors of the last Will dated 18.11.1966 and was releasing now with ulterior motive s. THE Will dated 9.1.1967 was a fabricated and manipulated piece of paper which had no legal force or sanction. It was a spurious document. THE defendants were in exclusive possession and enjoyment of the plaint second schedule property and other portions as per the Will dated 18.11.1966. THE plaintiff had no right, title or interest over the second schedule property or any part of the property allotted to the defendants. THE defendants had allowed their paternal junior uncle Sankaran Pilla's widow and her young children to occupy and reside therein till about 1 1/2 years prior to the filing of the suit. After they vacated the portion one Viswanathan became a tenant under the defendants for a rent of Rs. 25 per month. He had also vacated and the defendants had not leased out to anybody but keeping the possession with themselves. THE allegations regarding the plaintiff's possession of the suit property and that on 27.2.1983 the first and the 6th defendants interfered with his possession and that he re moved them with great difficulty were all tissues of lies and falsehood. THE suit was liable to be dismissed.

(3.) THE testatrix Arunachalathammal executed a Will on 18.11.1966 marked as Ex.B.6 in the proceedings. She died on 23.9.1967. According to the plaintiff, on 9.1.1967 the testatrix cancelled the Will executed by her under Ex.B.6 had executed the suit Will Ex.A.1. Indeed Ex.A-1 and Ex.B.6 had the same scribe Arunachalam Pillai as also the same attestors Thirumalai Kolundu Pillai and Sankaralingam Pillai. At the time of the trial the scribe had died. As per the terms of Ex.1 Will, the plaintiff was to get the second schedule property and the heirs of his two brothers Venkatachalam Pillai and Sankaralingam Pillai were to get pathway rights to reach the main street from Sami Sannadhi Street. THE case of the plaintiff that he came to know about the second Will only in the third week of December, 1981 appears to be too far fetched for acceptance as true. According to him this Will was traced by his brother Venkatachalam Pillai's wife Chidambarathammal along with some old records. She sent the Will to the plaintiff through her children and then only he came to know about the execution of the Will and thereafter he informed the same to his brother's heirs and he also accepted the legacy under the Will and started dealing with the property bequeathed to him. Even according to the plaintiff he came to know about the Will only in the year 1981. As rightly pointed out by the lower appellate court, he was not competent to speak about the exact execution of the Will Ex.A-1 by Arunachalathammal. THE scribe, as already noticed, was dead. Thirumalaikolundu Pillai, one to the attestors was examined as P.W.2 in the suit. His oral evidence according to the learned counsel for the appellants Mr. Shanmugam is unimpeachable and the lower appellate court was in error in rejecting the oral evidence of P.W.2. Very many discrepancies in the oral evidence of P.W.2 have been pointed out by the lower appellate court. Apart from saying that he did not see whether Arunachalathammal affixed her thumb impression in two places and that he knew only about her affixing the thumb impression in the page where he had attested in his evidence in earlier rent control proceedings where the execution of the earlier Will was put in issue and he was also examined, he did not whisper about the said Will. Yet another aspect of his evidence was that this Will was made public on the date of death of Arunachalathammal and all the persons were present. This vital admission by P.W.2 vis-a-vis the case of the plaintiff that he knew about the Will only in the second week of December, 1981, in the view of the lower appellate court would go to show that the truth about the execution of Ex.A-1 by Arunachalathammal was very much in doubt. If the Will was made public among the legatees even in the year 1967 on the date of death of Arunachalathammal, it is not explained as to how and why the plaintiff did not claim under this Will till the filing of the present suit. THE reasoning or the lower appellate court that in view of the patent contradictions and discrepancies in the evidence of P.W.2, the non-examination of the other attestator was significant. No doubt the provisions of Section 63(2) of the Indian Succession Act require the examination of one of the attesting witnesses for proving the due execution of the Will as sufficient. In view of the vitiating circumstances present in the case and the visible contradictions, it was incumbent on the plaintiff to have dispelled the suspicion surrounding the execution of Ex.A-1.