GANGAMMAL Vs. MARI MOOPAN

JUDGEMENT

(1.) THIS second appeal has arisen from the judgment and decree of the learned Subordinate Judge, Coimbatore made in A.S.No.49 of 1983 dated 8.3.1984 reversing the judgment of the learned District Munsif, Coimbatore made in O.S.No.360 of 1976 dated 23.7.1980.

(2.) THE respondents 1 and 2 filed a suit for partition and mesne profits with the following averments. THE suit properties viz., items 1 to 3 originally belonged to one Kalimoopan. THE property under item No.4 was purchased by his wife Chavalayiammal. He died on 7.8.1975. His wife predeceased him. Defendants 1 to 3 and one Manickammal who predeceased Kalimoopan, are the daughters of Kalimoopan while the sixth defendant is the son of the first defendant and the seventh defendant is the son of the second defendant. THE defendants 4 and 5 were the cultivating tenants of the suit properties in items 2 and 3. After the death of Chavalayiammal, the property in item No.4 was enjoyed by her husband and her daughters. Manickammal died leaving behind her a daughter the second plaintiff and her husband the first plaintiff. After the death of Kalimoopan, the plaintiffs 1 and 2 and the defendants 1 to 3 as his heirs were entitled to succeed his property viz., 1/4th share in the suit properties. THE 4th defendant was looking after the lands in item Nos.2 and 3 by paying 17 salagais of paddy as lease amount every year. THE fifth defendant was a lessee on waram basis. After the death of Kalimoopan, the defendants 1 to 3 joined together in order to defeat and defraud the legitimate rights of the plaintiffs in the suit properties and were indulging in activities adverse to their interest. THEy were forging and fabricating documents and also making arrangements for mutation of records. THE plaintiff were requesting the defendants for amicable settlement by partitioning the suit properties. But all such efforts proved futile. THE plaintiffs sent a notice dated 23.1.1976 to the defendants demanding partition of the suit property. None of them expressed their willingness for effecting partition and division. THE defendants 1, 2, 6 and 7 were setting up a Will which Kalimoopan did not execute at all. THE said Kalimoopan was confined to bed for about 3 years and more prior to his death. He was never in a sound and disposing state of mind. THE Will is a fabricated or forged document, which cannot create any right in favour of the defendants 6 and 7. THE alleged Will is not binding on the plaintiffs and it cannot affect their right or title in the suit property. THE defendants 6 and 7 were claiming exclusive right over item No.2 of the suit property under the Will. Hence, the suit might be decreed.

(3.) THIS second appeal has arisen form the judgment of the lower appellate Court granting a relief in respect of the item No.2 of the plaint schedule property in a suit for partition, in favour of the respondents 1 and 2 herein, who filed the said suit. The learned counsel appearing for the appellants would submit that the judgment and decree of the trial Court in respect of the 2nd item of property should have been confirmed by the lower appellate Court; that the defendants 6 and 7 were entitled to the suit second item as per the Will left by the deceased Kali Moopan and therefore the plaintiffs were not entitled to claim any share in the suit second item; that since the defendants have already stated in the written statement about the Will executed by Kali Moopan and as such there was no need for filing additional written statement once again repeating the allegations regarding the execution and the genuineness and the binding nature of the said Will; that the materials on record would clearly establish that the Will executed by Kali Moopan was true and valid and as such the defendants 6 and 7 were absolutely entitled to the suit second item; that since the suit second item belonged to the sixth and seventh defendants, the plaintiffs had no manner of right to claim any right in the suit second item that the evidence on record would prove that Kali Moopan was physically in a sound state of health and he was also mentally in a sound disposing state of mind at the time of execution of the Will in question; that it is pertinent to note that the appellants have examined one of the attesting witnesses to the document and hence the lower appellate Court was not correct in making adverse comments for non-examination of the other attesting witnesses to the Will; that the reasonings given by the lower appellate Court to set aside the judgment of the trial Court were neither sound nor correct, and in view of the sufficient evidence adduced by the appellants in proof of Ex.B-2 Will, the judgment of the first appellate Court has got to be set aside and the appeal has got to be allowed.