K.THANAMMAL, vs R.MUTHAMMAL,

2026:MHC:2847
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: 22.06.2026
Delivered on: 17.07.2026
CORAM
THE HONOURABLE MR. JUSTICE P.B. BALAJI
SA(MD). No.223 of 2019
and
CMP(MD)No.4416 of 2019 and 7705 of 2026
and
Cros. Obj.(MD)No.36 of 2026
SA(MD). No.223 of 2019:
st
K.Thanammal, ... Appellant / 1 Appellant /
st
1 Plaintiff
Vs.
st nd
1. R.Muthammal ... 1 Respondent /2 Appellant /
nd
2 Plaintiff
S.Padmanabhan (Died)
2. Kumaravel
3. P.Radhakrishnan
4. Jeyamma
5. C.Meyyappan ... Respondents 2-6 / Respondents 1 to 5
Defendants 1 to 5
PRAYER : Second Appeal is filed under Section 100 CPC, to allow the
second appeal and set aside the judgment and decree dated 05.01.2019
passed in A.S.No.29 of 2014 on the file of the Principal District Judge,
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Kanyakumari, partly dismissing the judgment and decree dated
28.02.2014 in O.S.No.121 of 2010 on the file of the Principal
Subordinate Judge, Nagercoil.
Prayer in CMP (MD)No.7705 of 2026: To examine the attesting
witnesses Mr.Sankaranpillai of the registered Will dated 06.12.2000
executed by the appellants' father Kumaravel in the above second appeal.
For Appellant : Mr.V.Raghavachari, Senior Counsel
assisted by Mr. TKS. Maniam
For Respondents : Mr.G.Prabhu Rajadurai for R2 and R3,
: Mr.V.Maharajan for R5
: No appearance for R1 & R4
Cross Obj. (MD)No.36 of 2026 :
1.Kumaravel
2.P. Radhakrishnan : Cross Appellants / Respondents 3&4
Vs.
1.K. Thanammal
2.R. Muthammal
S. Padmanabhan (Died)
3. Jeyamma
4. C. Meyyappan : Respondents /Appellant /
Respondents 1,2,4 & 5
PRAYER : Cross Objection filed under Order 41 Rule 22 of the Code of
Civil Procedure, to set aside the judgment and decree dated 05.01.2019
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passed in A.S.No.29 of 2014 on the file of the Principal District Judge,
Kanyakumari, partly dismissing the judgment and decree dated
28.02.2014 in O.S.No.121 of 2010 on the file of the Principal
Subordinate Judge, Nagercoil.
For Cross Appellants: Mr. G. Prabhu Rajadurai
For Respondents : Mr. V. Raghavachari, Senior Counsel
assisted by Mr. TKS. Maniam for R1
: Mr. V. Maharajan for R4
: No appearance for R2 & R3
COMMON JUDGMENT
The first plaintiff in O.S. No 121 of 2010 before the Principal Sub
Judge, Nagercoil, is the appellant. The first plaintiff along with the first
respondent in the second appeal filed O.S. No. 121 of 2010, seeking
partition and separate possession of four items of properties set out in
Schedule A to C.
2. The second appeal was admitted by this Court on 26.04.2019 on
the following substantial questions of law:
"1) When the defendants claiming under the Will
marked as Ex.B8, dated 23.11.2000, had not examined
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any one of the attesting witnesses and in the absence of
proving of the said Will in the manner required under
Sections 68 and 69 of the Indian Evidence Act, 1872,
whether the Courts below were correct in accepting the
said document and non-suit the plaintiff with regard to
items 1 and 2 of 'A' schedule property?
2)When the defendants claiming under the Will
marked as Ex. B9 dated 06.12.2000 had examined any
one of the attesting witnesses and in the absence of
proving of the said Will in the manner required under
Sections 68 and 69 of the Indian Evidence Act, 1872,
whether the Courts below were correct in accepting the
said document and non-suit the plaintiffs with regard to
'B' schedule property?
3) Whether the Courts below committed an error
in considering Ex. B24 when it had not been mentioned
in the pleadings of the defendants, since it is a settled
proposition that there cannot be any evidence without
pleadings?”
3. I have heard Mr. V. Raghavachari, learned Senior Counsel,
assisted by Mr. TKS. Maniam, learned counsel for the appellant / first
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plaintiff and Mr. G. Prabhu Rajadurai, learned counsel appearing for the
sons, the defendants 2 and 3 and Mr. V. Maharajan, learned counsel for
the fifth respondent / fifth defendant.
4. For the sake of convenience, the parties are referred to as per
their rank before the Trial Court.
5. Brief facts, that may be necessary for adjudicating the
substantial questions of law, are as follows:
The plaintiffs 1 and 2 in O.S. No.121 of 2010 are sisters, who are
admittedly daughters of the first defendant, viz. S. Padmanabhan. The
defendants 2 and 3 are their brothers, sons of the first defendant. Even
according to the plaintiffs, their mother Marimuthu had executed a Will
in respect of some of her properties, giving a benefit to all her children
vide Will dated 27.09.1996 was in fact registered Will. On her demise, on
03.01.2001, the beneficiaries including the plaintiffs and the defendants
took their respective entitlement and have been in possession and
enjoyment. It is however contended by the plaintiffs that apart from the
properties covered under the said Will, the mother / Marimuthu had four
others properties, in respect of which the suit claim has been made.
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6. The suit was resisted by the defendants with the father/
Padmanabhan of the plaintiffs himself choosing to file a written
statement, contending that his wife Marimuthu had executed a Will dated
23.11.2000, which was also registered in Document No. 2111/2020 on
the file of the Sub Registrar Office, and that under the said Will, items 1
and 2 of A Schedule properties were bequeathed to the sons, defendants 2
and 3. Insofar as B Schedule property, it is contended by the first
defendant that the property was purchased benami in the name of
Marimuthu and therefore, the plaintiffs are not entitled to any share.
Insofar as Schedule C property, it is contended by the first defendant that
the Schedule C property was jointly purchased in the name of Sivaraman
and the second defendant, another son of the first defendant, and the
other half share belonging to Sivaraman was inherited by Marimuthu and
on 23.11.2000, Marimuthu and the first defendant jointly executed a
Settlement Deed in respect of a one half share of Schedule C property, in
favour of the second defendant. Therefore, according to the first
defendant, Schedule C is not available for partition.
7. The fourth defendant is the purchaser of C Schedule property
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who filed an independent written statement, stating that she is a bonafide
purchaser and in any event, the plaintiffs cannot claim any share in C
Schedule property.
8. The fifth defendant is also a purchaser of one of the items in
Schedule B, namely item No.5. He filed an independent written
statement, contenting that he is a bonafide purchaser from the first
defendant and that the plaintiffs cannot claim any share in the said item.
9. The plaintiffs filed a reply statement denying the truth and
genuine of the Wills said to have been executed by their parents and
reiterated the claim for partition in respect of the suit properties.
10. Before the Trial Court, the second plaintiff, examined herselfas
P.W.1 and one Dr. Kannan was examined as P.W.2 and 19 documents
were marked as Ex. A1 to Ex. A19. On the side of the defendants, the
second defendant examined himself as D.W.1, one other witness was
examined as D.W.2 and the defendants 4 and 5 were examined
themselves as D.W3 and D.W4 and 40 documents were marked as Ex.
B1 to Ex. B40.
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11. The Trial Court, after analysing the oral and documentary
evidence available on record accepted the Wills under which the
defendants claimed right and consequently, dismissed the suit in toto .
Aggrieved by the same, the plaintiffs preferred an appeal in A.S.No.29 of
2014 and the First Appellate Court allowed the appeal in-part,
confirming the findings with regard to the Will, however, granted a
decree in respect of item Nos.3 and 4 of A Schedule properties to the
plaintiffs, while rejecting the appeal in respect of item Nos.1 and 2
covered by the alleged Will as well as Schedule B and C.
12. Aggrieved by the same, the first plaintiff has filed the present
Second Appeal.
Arguments of Mr. V. Raghavachari, learned Senior Counsel for the
appellant :
13. Mr. V. Raghavachari, learned Senior Counsel for the appellant/
first plaintiff would state that though the plaintiffs admitted to the factum
of the Will having been executed by the mother in 1996, the plaintiffs did
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not admit the execution of the alleged second Will, which was in respect
of some of the items of the suit property. He would contend that the Trial
Court as well as the First Appellate Court have shifted the burden
erroneously on the defendants, to establish the defence ignoring the
fundamental principle, that the propounder has to prove due execution of
the Will as required under Section 63(c) of the Indian Succession Act
read with 68 of the Indian Evidence Act. In this regard, it is the
submission of the learned Senior Counsel that none of the attesting
witnesses to the Wills were examined on the side of the
defendants/propounders and despite the same, besides also erroneously
shifting the burden on the plaintiffs, the Courts below have also given
weightage to the evidence of the scribe, who cannot take the place of an
attesting witness. Mr. V. Raghavachari, learned Senior Counsel would
attack the findings of the Courts below and contend that in the absence of
evidence that the scribe had also signed as attesting witness, his evidence
was of no value and cannot be substituted for the evidence of an attesting
witness, and that there is no proof of due execution and attestation of the
Will in the present case.
14. The learned Senior Counsel relied on N. Kamalam (Dead)
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and Anr v. Ayyasamy and Anr, reported in (2001) 7 SCC 503 , where
the Hon'ble Supreme Court held that the signature of the scribe of a Will
cannot be treated on par with the signature of an attesting witness and the
Hon'ble Supreme Court further held the propounder has not examined the
attesting witness and had not also taken steps to produce them before
Court and the evidence of the scribe cannot displace satisfactory
requirement under Section 68 of the Indian Evidence Act and 63 of the
Indian Succession Act.
15. The Hon'ble Supreme Court in Janki Narayan Bhoir v.
Narayan Namdeo Kadam, reported in (2003) 2 SCC 91 held that
execution of a Will can be proved by examining at least one of the
attestors in the manner contemplated under Section 63(c) of the Indian
Succession Act. The Hon'ble Supreme Court, even in the said decision
reiterated, the principle that a scribe cannot be treated as an attesting
witness.
16. In Meena Pradhan and Ors v. Kamla Pradhan and Anr,
reported in (2023) 9 SCC 734, the Hon'ble Supreme Court held that
since the person who executed the Will, viz., testator or testatrix is not
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available for deposing, in such circumstances under which the Will was
executed have to be necessarily proved to rule out possibility of any
manipulation and therefore the Will must necessarily satisfy the
requirements prescribed under Section 63(c) of the Indian Succession
Act and must also be proved in accordance with Section 68 of the Indian
Evidence Act.
17. Mr. V. Raghavachari, learned Senior Counsel taking me
through the evidence of doctor who was examined as P.W.2 contends
that, he has clearly spoken about the mental incapacity and unsoundness
of the testatrix and the Courts below have failed to give due weightage to
the same. In Chinu Rani Ghosh v. Subhash Ghosh and Ors, reported
in (2024) 20 SCC 125 , the Hon'ble Supreme Court held that onus of
proving a Will is on the propounder. Lastly, he would rely on the
judgment in Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr,
reported in 2025 SCC OnLine SC 1879 , where the Hon'ble Supreme
Court held that in terms of Section 68 of the Indian Evidence Act, it is
mandatory to examine at least one of the attesting witnesses to prove due
execution of the Will, as required under Section 68 of the Indian
Evidence Act and the mere fact that the Will is a registered document
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does not, by itself, dispense with the statutory requirement of proof or
confer validity upon the Will.
Arguments of Mr. G. Prabhu Rajadurai, learned counsel for the
Respondents 2 and 3 :
18. Per contra, Mr. G. Prabhu Rajadurai, learned counsel for the
respondents 2 and 3 in second appeal/cross appellants would firstly
invite my attention to the application filed in CMP (MD) No.7705 of
2026, seeking to examine one of the attesting witness to the Will of the
father, the first defendant dated 06.12.2000, bequeathing the Schedule B
properties absolutely to the sons, viz., defendants 2 and 3. In this context,
he would state that though the partition suit was partly decreed by the
First Appellate Court, a cross objection has been filed. The learned
counsel would further state that the First Appellate Court clearly erred in
granting a decree allotting entire items 3 and 4 of Schedule A property to
the plaintiffs. The learned counsel would pray for the said miscellaneous
application being ordered. On merits, the learned counsel contended that
the Courts below have rightly discarded the evidence of the doctor P.W 2,
who admittedly did not treat the testatrix. He would further state that
though one of the attesting witnesses was not alive, and other witness
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was in jail and therefore he could not be examined. The learned counsel
therefore contends there is no infirmity or irregularity committed by the
Courts below in going by the evidence of the scribe in such peculiar
circumstances. He would therefore pray for the second appeal to be
dismissed and the cross appeal to be allowed.
19. Mr. G. Prabhu Rajadurai, contends that the father himself had
filed a written statement expressing anguish over the conduct of his
daughter, the plaintiffs and had clearly indicated at paragraph No.8 of the
written statement that he had already made arrangements with regard to
his properties, to come into effect after his lifetime and that the plaintiffs
did not have any right in the suit properties. It is therefore the submission
of Mr. G. Prabhu Rajadurai that the testator himself had filed a written
statement as the first defendant in the suit, clearly indicated that he was
unhappy with his daughters, the plaintiffs and therefore, the Court is not
in error in holding that the Will executed by the father, though not proved
by the examination of the attesting witnesses, was true and genuine. In
this regard, Mr. G. Prabhu Rajadurai, has relied on the Division Bench of
this Court, of which I was a member, in Boomathi (died) & Ors v
Murugesan (died) & Ors, reported in (2023) 2 LW 162.
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20. It is also the submission of Mr. G. Prabhu Rajadurai that in
CMP (MD) No.7705 of 2026 has been filed seeking permission to
examine one of the attesting witnesses to the Will in order to ensure
complete justice between the parties. He would contend that the attesting
witness to the Will of the father has to be necessarily examined,
especially, when the father died pending the suit and no issue was also
framed with regard to the truth and genuineness of the father's Will. He
would also state that there was no occasion for the respondents 2 and 3,
who examined the attesting witnesses, since both the Trial Court as well
as the First Appellate Court had accepted the truth and genuineness of
the father's Will.
21. As regards the item Nos.3 and 4 in Schedule A and B allotted
admittedly to the plaintiffs, the learned counsel, Mr. G. Prabhu Rajadurai,
would state that the First Appellate Court has clearly fell in error in
declaring the entirety of item Nos.3 and 4 property, when admittedly, for
the Will, defendants 2 and 3, being the sons of the testator, would also
th
have been entitled to 1/4 share each in the said items of the suit
properties.
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22. I have carefully considered the submissions advanced by the
learned counsel for the parties.
Analysis :
23. It is not in dispute that the mother executed a registered Will in
1996 under which all her children were given benefit. However, insofar
as the properties standing in her name and not part of the said Will, the
suit for partition came to be filed. The suit was resisted by the husband of
the deceased, testatrix and the sons contending that Marimuthu, the wife
of the first defendant and the mother of the defendants 2 and 3 and the
plaintiffs, had executed a second Will on 23.11.2000, in and by which
items 1 and 2 of Schedule A had been bequeathed to the sons. Further, a
Will executed by the first defendant, marked as Ex.B9 dated 06.12.2008
is also relied upon by the sons, who contend that the father had executed
his last Will, bequeathing his properties to them. It is also an admitted
case of the parties that some of the items had been sold by the father and
sons and purchased by defendants 4 and 5. The purchasers only
contended that they are bonafide purchasers for value and their title is
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intact and the plaintiffs do not have any right in any of the suit items.
24. Though the Trial Court dismissed the suit in respect of all the
suit items, the First Appellate Court, on re-appreciation of facts, while
confirming the Wills executed by both the father and mother, which were
marked as Ex.B8 and Ex.B9, partly allowed the appeal in favour of the
plaintiffsand allotted entire items of 3 and 4 of Schedule A property to
the plaintiffs, dismissing the appeal in so far as item Nos.1 and 2 of
Schedule A property as well as the Schedule B and C property. In respect
of item Nos.3 and 4 of the Schedule A property, being allotted to the
plaintiffs, the cross objection has been filed.
25.Now, coming to the Will of the father, the father himself was a
party to the lis as the first defendant in the suit before the Trial Court. He
had filed a detailed written statement along with his two sons, defendants
2 and 3. In his written statement, as pointed out by Mr. G. Prabhu
Rajadurai, learned counsel for the petitioners, no doubt there is an
indication at Para 8 of the written statement that the first defendant has
made some arrangements, to come into effect after his lifetime. It is in
this context that Mr. G. Prabhu Rajaduari strongly relied on the decision
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in Boomathi (died) & Ors v Murugesan (died) & Ors, reported in
(2023) 2 L.W 162 and also my judgment in S.A. No.607 and 608 of
2017 [Periyathal (died) v. Vadivel] dated 30.04.2026, where I had an
occasion to remit the matter for the purpose of proving the Will.
26. Coming to the facts on hand, before applying the law, though
the father had filed a written statement, he had not indicated even the
date of the Will, leave alone there being any specific reference to
execution of Ex. B9 Will. There is also no specific reference to any date
st
on which the 1 defendant had made any such arrangements. The written
statement does not even spell out that under the said arrangement the first
defendant has not given any benefit to his daughters, the plaintiffs.
Therefore, on these facts, I am unable to see how the ratio laid down in
Boomathi's case can apply to the facts of the present case.
27. In Boomathi's case, the testator himself, relying on the Willhe
had executed, had filed a civil suit where there was not only specific
reference to the said Will, but the Will had also been filed along with the
plaint, as one of the suit documents. In such circumstances, we had
proceeded to apply Section 17 of the Indian Evidence Act and held that
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an admission of the testator himself would be sufficient proof of
execution of the Will. In fact, we had elaborately discussed the effect of
such an admission vis-à-vis, specific denial and non-specific denial. For
instance, where a Will is specifically denied and even where, not
specifically denied, then certainly the Will would require proof as
contemplated under Section 68 of the Indian Evidence Act read with
Section 63(c) of the Indian Succession Act. We also took note of the fact
that Section 68 of the Indian Evidence Act does not require proof of
admitted documents and also referring to Section 17 of the Indian
Evidence Act, dealing with admissions and the order in which Sections
have been placed in the Evidence Act under various Chapters, we held
that once the Will has been specifically admitted, thenit qualifies to be
applied as an admission under Sections 17 and 58 of the Indian Evidence
Act, and no further proof would be required and consequently there
would be no necessity to fall back on Section 68 of the Indian Evidence
Act, requiring proof of the document .
28. Insofar as the reliance placed on by Mr. V. Raghavachari, on
the decisions of the Hon'ble Supreme Court in Rajeev Gupta V.
Prashant Garg, reported in 2025(3)CTC730 andMeena Pradhan’s
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case and Ramesh Chand’s case, no doubt the Apex Court held that even
if the Will was not seriously disputed or denied, then the Will would have
to be necessarilyproved by, examining one of the attesting witnesses.
There is no quarrel with regard to the said legal position. When execution
of the Will has been specially denied or even not specially denied, then
there can be no second opinion that the mandate of Sec 68 of the Indian
Evidence Act read with Sec 63(c) of the Indian Succession Act would
have to be complied with. However, such requirement would be
unnecessary where the execution of a Will has been admitted, which
would attract Sections 17 and 58 of Indian Evidence Act straight way.
The judgements of the Hon’ble Supreme Court will have to be read in the
context in which they were rendered. In all these cases the Apex Court
held that even if the will was not specifically denied,even then it would
have to be proved as required under Section 68 of the Indian Evidence
Act read with Sec 63(c) of the Indian Succession Act. These case before
the Hon’ble Supreme Court were cases where the execution of the Will
had not been admitted. A distinction therefore has to be necessarily
drawn in cases where execution of the Will is admitted. In such cases
there is no triable issue arising with regard to proof of due execution of
Will requiring the propounder to comply with the mandate of Sec 68 of
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the Indian Evidence Act read with Sec 63(c) of the Indian Succession
Act. In all cases where the execution of the Will has been admitted by
the contesting party, then there is no reason to insist upon the proof of
Will by complying with the above provision of law. As held in
Boomathi’s case , Section 68, is not without a specific reason, placed
after Section 58 of the Indian Evidence Act. Therefore, proof of a Will in
terms of Section 68 will become necessary only when it does not satisfy
the test of sec 58 of the Indian Evidence Act. In any event, as I have
already held that the said decision in Boomathi's case will not apply to
the facts of the present case, therefore, the respondents 2 and 3 have to be
necessarily non suited for non-examining at least one of the attesting
witnesses.
29. As already discussed, in the facts of the present case, there is
not even any reference to even a Will, leave alone Ex. B9 Will executed
by the first defendants in his written statement. In such circumstances,
merely because, 1st defendant’s, written statement states that the first
defendant has made arrangements to come into effect, after his lifetime,
this certainly cannot qualify to be an admission, in order to take benefit
of Section 58 of the Indian Evidence Act. I am unable to countenance
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the arguments of Mr. G. Prabhu Rajadurai, in this regard. Admittedly, the
attesting witnesses have not been examined. No doubt, an issue has not
been framed with regard to the truth and genuineness of the Will of the
father. However, consciously the parties have referred to the said Will
and let in evidence with regard to his Will also. Admittedly the
defendants 2 and 3 have not taken any steps to prove the execution and
attestation of the Will and only before this Court, they have taken out an
application in CMP(MD)No.7705 of 2026, for examining the attesting
witnesses to the father's Will. Though Mr. G. Prabu Rajadurai would
contend that there was no occasion for the defendants 2 and 3 to examine
the attesting witness, since the Trial Court as well as the First Appellate
Court had held the Will to be proved, I am unable to countenance the said
argument for the simple reason that it is during trial that the propounder
has to prove the Will. Merely because the Trial Court had arrived at
erroneous findings, ignoring settled principles of law, it cannot clothe the
propounder with a right to seek examination of the attesting witness
before the Second Appellate Court. Hence, I do not see any merit in the
argument, when admittedly in respect of the father's Will, both the
witnesses have not been examined. The only conclusion, therefore, that
can be drawn is that the Will has not been proved as required under law
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and the Trial Court as well as the First Appellate Court have clearly fell
in error, in giving undue weightage to the general averments in the
written statement, without specific reference to the Will executed by the
father in Ex.B9.
30. Coming to CMP (MD)No.7705 of 2026, pending the second
appeal, the appellants want to examine the attesting witness to Ex. B9
Will dated 06.12.2000, which was executed by their father. The said Will
of the father has been exhibited even during trial of the suit. No attempt
was made by the defendants to prove the said Will by examining one of
the attesting witnesses. In the second appeal, therefore, an attempt
cannot be made for filling up the lacuna and patch up the weakness in
the case of the defendants. The mandate of Order XLI Rule 27 CPC has
not been made out in the present case and hence, I am not inclined to
allow the petition. Accordingly, CMP(MD)No.7705 of 2026 is dismissed.
31. Now, the only question that survives for consideration is as to
whether Exs.B8 and B9 have been duly proved in the manner known to
law. Insofar as the Will of the father, first defendant admittedly none of
attesting witnesses have been examined, even though the Will has been
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marked as Ex. B9.I have already discussed herein above as to the
defendants attempt to fill up the lacuna , by attempting to examine the
attesting witness at this stage. In such circumstances, in the absence of
any proof whatsoever and both the attesting witnesses also not being
examined, the Courts below were clearly in error in upholding
Ex.B9Will, contrary, to the well settled principles enunciated by the
Hon'ble Supreme Court as well as this Court in matters pertaining to
proof of Wills, under Section 68 of the Indian Evidence Act, read with
Section 63(c) of the Indian Succession Act.In such view of the matter,
the findings of the court below in upholding Ex B9 Will are clearly
unsustainable in the eye of law and liable to be overturned in second
appeal, in exercise of powers conferred upon me under Sec 100 of CPC,
especially when I have already pointed out not only the perversity in the
findings arrived at by the courts below and in also view of settled dictum
of the Supreme Court as well as this court not being followed.
32. Coming to the Will of the mother, the Courts below have
accepted the evidence of the scribe, who was examined as D.W.2. The
Courts have also recorded the fact that steps were taken to examine the
attestors and that summons sent to one of the attesting witnesses returned
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with an endorsement, “dead” and to the other witnesses, with an
endorsement “he is in Central Prison, Palayamkottai”. Merely because
one of the attesting witnesses was serving sentence in Central Prison, it
does not in any manner impede the examination of the Witness. No steps
have been taken by the propounder to record the examination of the
attesting witness, who was admittedly alive and in prison. Instead, the
scribe D.W.2 has alone been examined.
33. Insofar as the evidence of Doctor P.W.2, though Mr. V.
Raghavachari, learned Senior Counsel would vehemently contend that
the evidence of P.W.2 clearly established that the testator was not of
sound disposing mind and relied upon the medical certificate issued by
the hospital in which he was serving, he has clearly spoken about that
testatrix suffering from cancer and such a patient cannot take
independent decisions. As rightly contended by Mr. G. Prabhu Rajadurai,
the evidence of P.W.2 is nothing more than his personal opinion.
Admittedly, Marimuthu was suffering from cancer, and P.W.2 himself
deposed that Marimuthu's mental faculties were intact. Therefore, his
testimony does not establish that the testator lacked a sound disposing
state of mind as well and therefore, he would contend that no error was
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committed by the Courts below, in rejecting the evidence of P.W.2-
Doctor.
34. Be that as it may, I do not find the evidence of the Doctor- P.W.
2 adding any value. Firstly, P.W.2 did not treat Marimuthu and secondly,
his evidence in chief examination appears to be more of his perceptions
and in the nature general observations and not with specific reference to
the deceased Marimuthu. In such circumstances, the Courts below, in my
considered opinion, did not commit any error in disbelieving the
evidence of P.W.2. At the same time, merely because I am discrediting
the evidence of P.W 2 the doctor it does not automatically absolve the
propounder or discharge him from the onus of proving due execution and
attestation of the Will of the mother.
35. However, the mere fact the evidence of P.W 2 doctor has been
discredited does not automatically merit acceptance of due proof of
execution and attestation of the Will of the mother. No doubt as pointed
out by Mr. G. Prabhu Rajadurai, the learned counsel for respondents 2
st
and 3, there is an indication that the 1 defendant was unhappy with the
plaintiffs, his daughters. There is also reference in paragraph No.8, his
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father has made some arrangements for property to be taken after his
lifetime.
36. Mr. G. Prabhu Rajadurai the learned counsel for the
respondents 2 and 3, namely the sons, would firstly contend that the
second Will of the mother has been proved by examination of the D.W.2
the scribe, and the non examination of attesting witnesses is not fatal. He
would further contend that said Will is a registered instrument and
further the propounder has satisfactorily established that he was not in
position to examine the both the attesting witnesses to the second Will of
the mother. It is in this regard, he takes me through the discussion before
the courts below with regard to steps taken to summon both the attesting
witnesses to give evidence regarding the Will. Mr. G. Prabhu Rajadurai
would therefore contend that the propounder did what best he could do
and admittedly when it is not in dispute that one attesting witness had
already passed away and other attesting witness was in prison, serving
sentence in a criminal case, the propounder cannot be faultedfor not
examining both the attesting witnesses. It is therefore his contention that
in such circumstances the evidence of scribe examined as D.W 2
becomes relevant and was rightly factored by both the courts below.
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37. Mr. G. Prabhu Rajadurai the learned counsel would also take
me through the evidence of D.W.2, who had spoken about the fact that he
had prepared the Will, and on the same day the Will was also read over
and thereafter signed it. It is therefore the argument of the counsel that
the scribe was in fact, an attesting witness and the evidence has been
rightly relied upon by the Courts below, in this regard, the learned
counsel would rely upon a decision in Karpagam v. E. Purushothaman,
reported in (2010)3LW282.
38. Even with respect to the mother’s Will, the very same
discussion would equally apply with regard to the requirement of
examination of at least one of the attesting witnesses would equally apply
to the mother’s Will as well. However, it is the contention of Mr. G.
Prabhu Rajadurai, that the scribe in this case clearly spoke about would
the execution of the Wills and also the factum of mother having executed
a Settlement Deed on the same date, which has also not been challenged.
He would therefore contend that when the defendants had pleaded that
the documents were brought about by undue influence, fraud and
coercion, the execution of the Will of the mother has been admitted bythe
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plaintiffs themselves and in such circumstances, the scribe's evidence,
who had clearly spoken about the mother/Marimuthu having signed the
document would be sufficient to establish due execution and attestation
and his evidence would satisfy the requirement of proof of due execution
of attestation of Ex.B8 Will. It is also his submission that the mother and
father had consciously taken a joint decision not to give any properties to
the daughters, in view of their conduct and the father himself had
actively participated in the execution of the Will of his wife Late.
Marimuthu.He would therefore state that the said decision arrived at by
Marimuthu was only in consultation and on advice of her husband / first
defendant and it would not amount to undue influence or coercion and in
fact it is his further argument that such exercise of influence as long as it
is not undue is certainly permissible in law. It is also his further
contention that the father himself had clearly spoken about the execution
of the second Will by the mother in Ex. B8 and also about his
participation in bringing about the Ex. B8 Will. It is therefore the
submission of Mr. G. Prabhu Rajadurai that on an overall assessment of
the facts and circumstances of the present case, the evidence of the scribe
can be taken as a substitute for evidence of an attesting witness.
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39. With regard to the arguments of Mr. G. Prabhu Rajadurai that
the propounder had taken all necessary steps to require the attendance of
attesting witness and when the court was aware of the return of the
witness summons sent to the attesting witness who was lodged in Central
Prison, Palayamkottai. Mr. G. Prabhu Rajadurai contents that it is duty of
the court to have redirected the summons to the Prison and it is was not
the duty of the respondents 2 and 3. In this context, he also relied on the
judgment of this Court in Karpagam v. E.Purushothaman, reported in
(2010) 3 LW 282 . In the said decision, this Court has referred to
imprisonment of a witness as one of the illustrative circumstances to
bring it within the category of “attesting witness cannot be found”.
However, I do not see this as a binding precedent. In fact, Order XVI-A
has been specifically incorporated by way of amendment through the
Code of Civil Procedure . The said order deals with attendance of witness
confined or detained in prisons. Rules 6 and 7 of Order XVI-A
specifically provide for the manner in which a prisoner can be brought to
court and also be examined on commission in the prison itself. The
respondents 2 and 3 have not taken recourse to this specific provision
available, for which they can only blame themselves and not the court.
As regards, the judgement of this court in Karpagam’s case, the view
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expressed in the said decision appears to be a more general andfleeting
observation by including a witness in prison within the category of “no
attesting witness found”, especially without noticing Order XVI-A of
CPC which specifically provides the procedure for examining a witness
who is in Prison. Therefore, I am unable to accept to the contention that
illustrative instances carved out in Karpagam's case are applicable to the
facts of the present case.
40. Mr. G. Prabhu Rajadurai would also rely upon my decision in
Periyathal (died) v. Vadivel in SA. Nos. 607 and 608 of 2017 .
However, that was a case where even before the First Appellate Court,
the matter had been remitted to the Trial Court for the purpose of
examination of the attesting witnesses, to prove the testamentary
instrument. It is not a matter of right for a propounder to seek for
examination of attesting witnesses, having lost an opportunity earlier.
Therefore, I am unable to apply the ratio in Periyathal’s case to the facts
of the present case.
41. This now leads as to whether the evidence of the scribe can be
treated as evidence of an attesting witness. The scribe, in his chief
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examination has stated that he has prepared all documents, viz., Ex. B6, 7
and 8. Ex. B6, being the first Will, which is admitted by both the parties,
Ex. B7, Settlement Deed in which the mother settled the property and Ex.
B8 being the second Will of the mother. In his chief examination, he has
merely stated that he prepared the document; I don’t find any further
evidence regarding its execution , “ gj;jpuq;fisgbj;Jg; ghh;j;Jrhpjhd;
vdifnaOj;JNghl;lhh;fs;. ” . Therefore, D.W.2 does not state that he
saw the testatrix signing the Will or that the Will was signed in his
presence and in the presence of two witnesses. Even the further
requirement, that the two witnesses had signed in the presence of the
testatrix has not been stated. Therefore, there is absolutely animo
attestandi in the present case, to treat the evidence of the scribe as the
evidence of attesting witnesses. Unfortunately, the Courts below have
misdirected themselves, in upholding the Ex. B8 Will, even in the
absence of one of the attesting witnesses being examined, erroneously
treating the evidence of the scribe, as the evidence of an attesting
witness. As already discussed hereinabove, in a catena of decisions, the
Hon'ble Supreme Court, time and again, has reiterated that a scribe
cannot take the place and role of an attesting witness, unless there is
strong evidence to establish that the scribe signed the Will animo
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attestandi and he in fact put his signature in the Will even as an attesting
witness. I do not see any such evidence in the present case, warranting
the evidence of this scribe to be treated as the evidence in the attesting
witness.
42. For various reasons discussed hereinabove, the Wills dated
23.11.2000 and 06.12.2000 having not been proved in a manner known
to law, with none of the attesting witness being examined, there is a clear
failure to establish due compliance with the requirements of Section63(c)
of the Indian Succession Act read with Section 68 of the Indian Evidence
Act. The Courts below erroneously fell in error upholding the said Will,
in the absence of due proof of execution and attestation of Ex. B8 and
Ex. B9. Thus, the Courts below have committed a grave error in
upholding the Will of the mother, contrary to the well-settled legal
principle enunciated with regard to the proof of execution of attestation
of the Wills.The substantial questions of law 1 and 2 are answered in
favour of the appellants.
43. Though reliance is also placed on Ex. B24, which is said to
have been signed by the parties, after the demise of the father, the first
defendant, as rightly pointed out by the learned counsel for the appellant,
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all the Wills Ex. B7, B8, B9 as well as Ex. B24 were marked only subject
to objection. Ex. B24 is an unregistered document having no evidentiary
value. Though Mr. G. Prabhu Rajadurai, would state that the document
can be looked into at least for the limited purposes that the parties were
aware of the mother having executed two Wills, when the documents
were marked subject to objection on the side of the plaintiffs and there
also being absolutely no whisper about Ex. B24 in the pleadings, the
documents have been introduced for the first time during chief
examination of D.W.1, the courts below ought not to have looked into the
same Ex. B24. It is settled law that no evidence can be adduced in the
absence of pleadings.
44. In view of the above findings regarding both the Wills of the
father and mother having not been proved, as a natural coronary,
plaintiffs are entitled to partition. However, in respect of Schedule C
properties, the mother Marimuthu even during her lifetime has executed
a Settlement Deed. The plaintiffs have not challenged the Settlement
Deed as well. Therefore, plaintiffs are not entitled to seek partition in
respect of Schedule C property.
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45. Insofar as C Schedule property, the mother being the sole
surviving legal heir of her pre-deceased son Sivaraman, became entitled
to the entire C Schedule property, in respect of which also Ex. B7
Settlement Deed has been executed. Thus, the plaintiffs are not entitled
to relief of partition even in respect of C Schedule property. The Courts
below have rightly dismissed the suit in so far as Schedule C properties
and the said findings do not warrant interference in Second Appeal.
46. The First Appellate Court, while upholding Wills, dismissed
the suit in so far as item 1 and 2 of Schedule A alone, while allotting
items 3 and 4 of Schedule A in entirety to the plaintiffs. It is aggrieved by
this that the Cross Objection has been filed.
47. I have already condoned the delay by a separate order in
preferring the cross objection. The First Appellate Court clearly fell in
error in declaring item Nos.3 and 4 of Schedule A property to be the
absolute property of the plaintiffs, ignoring the fact that the sons namely
respondent 2 and 3 are also legal heirs, entitled to an equal share in the
said items. In view of the above, the cross objection will have to be
necessarily allowed.
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48. In fact, the plaintiffs, in and by their reply statement, to the
written statement filed by the defendants 1 to 3, did not specifically deny
the execution of Settlement Deed by the mother and had merely stated
that the document was forged, fabricated and brought about by undue
influence. When such pleas are taken, the burden is upon the plaintiffs to
establish the documents were brought about by fraud, coercion, or undue
influence. Further,the plaintiffs had also not chosen to amend the plaint
by seeking necessary declaration regarding Ex. B7 Settlement Deed
executed by the mother. In this regard, I am therefore unable to
countenance the arguments of the counsel of the plaintiffs that since the
execution of the documents have been denied and defendants have not
chosen to examine at least one of the attesting witnesses to Ex. B7
Settlement Deed, Ex. B7 Settlement Deed, is not admissible in evidence.
As already discussed hereinabove, the plaintiffs have not specifically
denied the execution of Ex. B7 Settlement Deed and on the contrary by
alleging in their reply statement that it was brought about by undue
influence etc., it only implies that the document was in fact admittedly
executed by the mother. In such circumstances, I am unable to accept the
line of arguments that non examination of one of the attesting witnesses
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to Ex. B7 Settlement Deed is fatal and Ex. B7 Settlement Deed cannot be
looked into.
49. In fine, the Second Appeal is partly allowed. The Cross
Objection is also allowed. The plaintiffs, viz., the appellant and the first
respondent and respondents 2 and 3 (defendants 2 and 3) are equally
th
entitled to 1/4 share in all items of Schedule A and B properties, while
the dismissal of the suit in respect of Schedule C property concurrently
by the Courts below stands confirmed. Considering the relationship
between the parties, there shall be no order as to costs. CMP(MD)No.
7705 of 2026 is dismissed. CMP(MD)No.4416 of 2019 is closed.
17.07.2026
NCC:Yes
Internet: Yes
Index:Yes
LS
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To
1. The Principal District Judge,
Kanyakumari,
2.The Principal Subordinate Judge,
Nagercoil.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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P.B.BALAJI,J.
LS
Pre-delivery Judgment made in
SA(MD). No.223 of 2019
and
CMP(MD)No.4416 of 2019 and 7705 of 2026
and
Cros.Obj.(MD)No.36 of 2026
17.07.2026
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