S RAMASAMY Vs. VELAPPA GOUNDER

JUDGEMENT

(1.) ONE Sennimalai Gounder had six sons and when he died on 28.06.1982, he left behind him surviving his wife and above six sons. The appellant is the second son and respondents 1 to 5 are the other sons and the sixth respondent is the wife. Respondents 7 to 9 are the Legal Heirs of the first respondent who died pending this appeal. The appellant filed a suit for partition claiming his separate share in six items of the properties on the ground that they were all ancestral properties. The Trial Court accepted his case with regard to item Nos.1 and 6, but dismissed the suit as regards item Nos. 2 to 5 on the ground that they were self acquired properties of Sennimalai Gounder and they had been dealt with by him in the Will dated 25.1.1981, Ex.B.24.

(2.) THE learned Counsel appearing for the appellant attacked the genuineness of the Will for the following reasons. First, the third respondent and the testator were living in the same house; so the third respondent had the opportunity to exert his influence on his father; Second, the bequest was unequal as admitted by D.W.1 the third respondent that the "C" Schedule property bequeathed to the third respondent, was much more valuable than the properties bequeathed to the other sons; Third, the Will cannot b e believed, because the recitals and the evidence of D.W.1 refer to the appellant withdrawing an earlier suit, but the dismissal of the earlier suit was only on 16.9.1981 a date subsequent to the Will. Fourth, according to D.W.2 the attestor, Sennimalai Gounder told him at that time of the execution of the Will that he had given his property equally to all his sons, this was factually not correct. Fifth, D.W.3 was also an interested witness and his evidence as though he was the scribe of Ex.B.24, cannot be given any weight. Sixth, the evidence of D.W.1 shows that on the date of execution of the Will, he was not in Town, but on his return, his father told him about the Will and he advised the father that it should be registered, from this it could be easily deduced from this that the third respondent, the appellant's brother, took an active part in the preparation of the Will. He knew about the Will even before his father's death and he also knew that he has been given an undue preference. THE finding of the Trial Court that Sennimalai Gounder would have executed the Will provoked by the appellant filing the earlier suit for partition is not supported by materials.

(3.) NORMALLY a will is executed only if there is an intention to deviate from the pattern in which the interest would have devolved had the executant died intestate. What the Court has to see is whether the departure is so shocking and disturbing to the Court's conscience. In this case, there is no serious attack on the testimony of D.Ws.2 and 3, but only that in the Will a strong preference has been given to the third respondent. As regards the unequal distribution, the Will shows clearly that even during the life time of the testator, each son has been well provided for, that too at the time of the marriage. For example, the bequest in favour of the first son is extracted here: