Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
CASE NO.:
Appeal (civil) 5145 of 2003
PETITIONER:
S. Sankaran
RESPONDENT:
D. Kausalya
DATE OF JUDGMENT: 15/02/2007
BENCH:
S. B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
MARKANDEY KATJU, J.
This appeal has been filed against the impugned judgment of the
Madras High Court dated 14.2.2002 in O.S.A. No. 275 of 1999.
Heard learned counsel for the parties and perused the record.
The case of the appellant is that the testator Singaravelu Nayagar
executed a will on 24.9.1986 registered as Document no.66 of 1986 on
the file of the Sub Registrar, Purasavakkam. The testator had two
daughters viz. Kausalya, the respondent herein (who is the elder
daughter) and one Saraswathi. The appellant is the eldest son of the
said Saraswathi. Apart from the appellant the said Saraswathi has two
more sons viz. Gopi and Manohar. The testator appointed the appellant
as executor under the suit will and as such he alleged that is entitled to
get the probate.
The respondent filed a written statement contending that the will
dated 24.9.1986 alleged to have been executed by Singaravelu Nayagar
is a forged one and that the testator had executed a will dated
4.11.1982, much earlier to the execution of the will dated 24.9.1986
where under he bequeathed the property at No.16, Manicka Naicken
Street, Purasavakkam, Madras, giving equal share to both the
daughters.
The question involved in this case is a short one i.e. whether the
will dated 24.9.1986 executed by Singaravelu Nayagar was a valid one.
A learned Single Judge of the High Court by his judgment dated
25.5.1996 held that the will dated 24.9.1986 was genuine and was not
a forged one. The learned Single Judge took into consideration various
factors e.g. that the testator himself presented the will for execution,
and there was a dispute between the testator and his elder daughter and
hence he wanted to bequeath his properties to his second daughter and
the sons born to her, etc..
In appeal the Division Bench of the Madras High Court set aside
the judgment of the learned Single Judge but without a proper
consideration of the various facts and circumstances of the case
mentioned by the learned Single Judge in his very elaborate judgment.
The Division Bench was evidently influenced by the fact that the
elder daughter was deprived of her share in her father’s property.
However, the Division Bench has not taken into consideration the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
various considerations which according to learned Single Judge
motivated the testator to deprive his elder daughter, the respondent
herein.
No doubt the Division Bench could have reversed the judgment
of the learned Single Judge but it should have done so after considering
inter alia the various factors which persuaded the learned Single Judge
to decide in favour of the appellant herein. Since the Division Bench
has not done so we are of the opinion that the judgment of the Division
Bench cannot be sustained and it is hereby set aside. The matter is
remanded to the Division Bench for a fresh decision after considering
inter alia the various facts and circumstances of the case referred to by
the learned Single Judge and also the evidence and the various case law
on the point.
The Division Bench may consider the desirability of an early
disposal of the case since it is pending for a long time. The appeal is
allowed. No order as to costs.