VALLIAMMAL (DIED) AND ORS. Vs. PALANISWAMY AND ORS.

JUDGEMENT

(1.) THE plaintiff in O.S. No. 47 of 1972 in the Court of the Subordinate Judge of Udumalpet is the appellant. There was one Semalai Gounder, who had two wives. He had two daughters Muthammal and Palani Ammal through his first wife. He had three issues by this second wife viz., two daughters Valliammal, the plaintiff and Ramathal and a son Palani Goundar. On the death of Semalai Gounder, Palani Gounder became entitled to his properties. Palani died in the year 1943. He had no issues and left behind only his widow Deivayanai Ammal alias Devathal. This Devathal fell ill sometime in October, 1969. One Dr. Sankunni practising in Pollachi paid one or two visits to her house to treat her. Subsequently as advised by him she entered his hospital at Pollachi on 24th October, 1969. At that time she appeared to have complained of pain in the abdomen and the chest region. It is not clear whether any test was conducted. But she was discharged on 1st November, 1969, without being cured. She was thereafter taken to the Christian Mission Hospital at Ottanchatram on 1st November, 1969. That seems to be a better equipped hospital and blood test was conducted there. It was found that she was suffering from what is popularly known as 'blood cancer'. It was realised that there was no cure for her ailment, and as desired by her, she was discharged sometime during the day of 3rd of November, 1969. She went back to her village known as Mettupalayam near Pollachi and died at the early hours of the 4th. If she had died intestate, then the properties would have devolved on the plaintiff, who is her husband's sister, solely as the other issues of Semalai Gounder are no more. She was, however, said to have left a will executed on 3rd November, 1969 and registered on the same day before the Sub -Registrar at Ottanchatram. The plaintiff came forward with the present suit claiming that she was the heir of Devathal and that the will was not valid, as she was not in a sound and disposing state of mind. According to the plaintiff the will could not confer any title on the defendants. The defendants are the legatees under the will and they have taken possession of the properties left by Devathal. The main question that arose for consideration in the suit was whether the will dated 3rd November, 1969 was true and valid. The learned Subordinate Judge held that the will was true and valid and therefore, he dismissed the suit. The plaintiff has come forward with the present appeal.

(2.) THE only point that arises for consideration in the present appeal is whether the will alleged to have been left by Devathal is true and valid. At this stage the relationship between Devathal and the plaintiff may be briefly noticed. The plaintiff instituted two cases against the testator. In one case she was the sole plaintiff and in the other her sister Ramathal had also joined her. Both the cases were dismissed. She instituted O.S. No. 121 of 1952 on the file of the Sub -Court, Coimbatore along with Ramathal for appointment of a Receiver for the properties (in the possession of Devathal) making allegations of waste and neglect on her part. In the year 1952 Devathal had only a limited estate and, therefore, as the possible reversioners they came forward with the said suits. The suit was dismissed on 11th September, 1956. The pleadings etc., in the said case were marked as Exhibits B -13 to B -19, and they disclose that the relationship between the testator and the plaintiff was strained.

(3.) SHE is known as Deivayanai Ammal with an alias name as Devathal. She signed in certain documents as Deivayanai Ammal and at any rate in one document as Devathal. The document in which she has signed as Devathal is Exhibit B -36 dated 16th July, 1959. Subsequently in several documents marked as Exhibits B -20, B -23, B -26, B -29, B -31, B -32, B -34 and B -35 she had signed as Deivayanai Ammal. The learned Counsel for the appellant relied on her consistent signature of Deivayanai Ammal over a period of several years prior to her M L J -59 death, and referred to the statement in the will which, according to him, was a telltale one stating that she used to sign as Devathal. He relied also on Exhibit A -5 a certificate dated 26th January, 1970 issued by Dr. Sankunni Pallat, L.M.P., Pollachi, certifying that she was admitted in his clinic on 24th October, 1969 with high temperature and chest pain and that she was discharged on 1st November, 1969 in a delirium state. According to the learned Counsel she did not recover her consciousness subsequently. He referred to the presence of the first defendant at the time of the so -called execution of the will and his suggestion was that the first defendant must have engineered the execution of the will. He relied also on the evidence let in the case as showing that she was not in a sound and disposing state of mind.