MEENAKSHI Vs. MINOR VIJAYANANDASUNDARI

JUDGEMENT

(1.) THE defendants in the suit are the appellants.

(2.) THE case in brief is as follows: THE plaintiff filed a suit for declaration of title to the suit property and for delivery of possession. THE suit property originally belonged to one Krishnasamy Naidu and he executed a settlement deed dated 28.12.1953 in favour of Rangadoss Naidu. THE settlement deed was duly accepted and acted upon. Rangadoss Naidu died some 20 years back as bachelor and his only brother and heir was Venugopal Naidu and he took possession of the property as the owner. He also did not marry. THE plaintiff's father called S.D. Sami Naidu was the close friend of Venugopal Naidu and Venugopal Naidu was taking meals in the house of Sami Naidu regularly. THE plaintiff's family alone were taking care of Venugopal Naidu till his death. On 17.12.1979 Venugopal Naidu executed a registered Will bequeathing the property in favour of the plaintiff. THE Will was duly executed in a sound and disposing state of mind and duly attested. It was the last testament of testator and took effect on his death. He handed over the original title deeds and also the original Will to the father of the plaintiff. Venugopal Naidu was suffering from cough and fever and he was given treatment in Krishna Hospital, Cuddalore for ten days prior to his death. THE 1st defendant is the daughter of Venkatasubbu Naidu and the 2nd defendant is the husband of the 1st defendant. Venkatasubbu Naidu trespassed into the suit property in 1980 forcibly and on behalf of the plaintiff, notice was issued on 8.1.1980 calling upon him to vacate the property and hand over possession. On 17.1.1980 he sent a reply with false allegations. Venkatasubbu Naidu was the pangali of deceased Venugopal Naidu. THE plaintiff and his predecessors-in-title were in possession for more than 12 years. After the death of Venkatasubbu Naidu, the defendants are in illegal occupation of the property and hence the suit.THE defendants admitted that the suit property originally belonged to Venugopal Naidu, but he was not living with S.D. Sami Naidu nor he was taking care of him. Venugopal Naidu was living in the property alone and died on 21.12.1979. On his death, he left behind his only heir Venkatasubbu Naidu, who is his pangali, grandfather's younger brother's son. Venkatasubbu Naidu took possession of the property and executed a Will while he was in sound and disposing state of mind bequeathing the property in favour of his daughter, the 1st defendant. She had succeeded to the property as a legatee and she is in possession. THE notice issued by the plaintiff has been replied. THE 1st defendant denied the truth and validity of the Will said to have been executed by Venugopal Naidu. He was seriously ill and bedridden for a week prior to the death and admitted in Krishna Nursing Home. At that time, Venugopal Naidu was not in sound and disposing state of mind. Sami Naidu with the help of his parties has concocted and fabricated the document. THE 3rd defendant was a tenant of Venugopal Naidu and after his death, he has been paying rent to Venkatasubbu Naidu and now the 1st defendant is receiving the rent. THE trial Court framed 5 issues and on behalf of the plaintiff, P.Ws.1 to 4 were examined and Exs.A-1 to A-22 were marked and on the side of the defendants, D.Ws.1 to 3 were examined and Exs.B-1 to B-4 were marked. THE trial Court dismissed the suit and aggrieved against this, the plaintiff preferred A.S. No.147 of 1989 on the file of District Court, Cuddalore and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial Court and decreed the suit. Aggrieved against this, the defendants have come forward with the present second appeal.

(3.) IT is admitted that the plaintiff is a stranger to the deceased, whereas Venkatasubbu Naidu is the pangali of the deceased. The burden is only upon the plaintiff to establish that Ex.A-2 was duly executed and attested by the witnesses and also executed by the testator while he was in a sound and disposing state of mind. As adverted to, the documents filed on the side of the plaintiff clearly established that the medical expenses was incurred only by the plaintiff's father P.W.1. IT is clear from the evidence of P.Ws.1 to 4 that the testator was in a sound and disposing state of mind and he had actually seen the attestors signing the document and similarly the attestors had also seen the testator signing the document. P.W.2 is the scribe of the document and P.Ws.3 and 4 are the attestors to Ex.A-2 and they also went to the Sub Registrar's office on the next day and they figured as identifying witnesses under Ex.A-2. A genuine doubt has been raised by the appellants to show that the testator could not have gone out of the hospital; but the evidence of P.Ws.1 to 4 established that the testator went in a judkha on the date of execution of Ex.A-2 and also went on the next day for the purpose of registration. There is no reason to discard the testimony of P.Ws.2 to 4 and they are independent witnesses.