Paneerselvam @ Nellappan (died) and anr vs. Amsavalli and anr.
A.S.No. 521 of 2011
C.V.KARTHIKEYAN and K.KUMARESH BABU, JJ
Overview
This appeal was heard in the Madras High Court in a partition suit among siblings, based primarily on the validity of a registered Will allegedly drawn up by their father. Essentially, this appeal turned upon whether the Will under date 08.05.2003 was proved in conformity with the mandatory formalities laid down in law under the Indian Succession Act, 1925 and the Indian Evidence Act, 1872. The Trial Court held that there was divergence in the Will and therefore did not give probative weight to it, issuing a preliminary decree on partition. This decision was appealed against by the defendants, who submitted that there was satisfaction in proving this Will by attesting witnesses and the scribe.
Facts
The parties to the suit are brothers. The suit schedule property is a residential House measuring 3150 sq. ft. Some of the details of the suit property are that the property is originally owned by the father of the parties, namely, Subramania Mudaliar. The plaintiff filed suit is O.S. No.149 of 2008 seeking partition for his alleged one-fourth share.
The defendants (sons) defended the case through reliance on a registered Will dated 08.05.2003, wherein their father allegedly bequeathed the entire property to them alone. The plaintiffs disputed the authenticity of this Will, claiming forgery and irregular execution.
On trial, the defendants examined both the attesting witnesses on the Will as well as the scribe. The original Will was labelled as Ex.B-1. During the course of the cross-examination, an earlier Will dating back to 03.06.1997 was produced and labelled as Ex.A-6, although it was not stated in the plaint.
The Trial Court held that the Will dated 08.05.2003 is not proved in the manner known to law and passed the preliminary decree for partition. The defendants, being aggrieved thereby, preferred the present appeal.
Legal Issues
- Whether the Will dated 08.05.2003 (Ex.B-1) was proved according to section 63(c) of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act, 1872.
- Whether contradictions or lack of clarity in the testimony of the attesting witnesses were sufficient to invalidate the Will despite being obtained after several years.
- Whether the mere registration of a Will creates a presumption of genuineness.
- Whether the Trial Court erred in granting a preliminary decree of partition.
Decision
The High Court considered the evidence produced before the court by the attesting witnesses and the scribe. The Court observed that the attesting witnesses and the scribe were produced before the court, identified their signatures, and consistently denied the contrary proposition that the testator did not sign the Will. The Court held that some inconsistencies in the evidence, especially when the witnesses were questioned close to eight years after the execution of the Will, were only natural and would not therefore affect the Will.
The Court held that the Trial Court proceeded in too technical a manner and failed to appreciate the evidence as a whole. While reiterating that registration does not dispense with proof, the High Court held that the conditions necessary to prove the Will were satisfied in the present case. Accordingly, the High Court allowed the appeal, set aside the preliminary decree for partition, and held the Will dated 08.05.2003 valid, thus dismissing the suit for partition.
