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Judgment
This appeal suit is directed against the judgment and decree passed in O.S.No.171 of 2007 on the file of the Additional District Judge[Fast
Track Court No.II], Coimbatore dated 28.09.2010. The appellant is the 3rd defendant, who lost the suit to the plaintiff laid for declaration,
delivery of possession and past and future mesne profits in respect of the suit schedule property.
Brief facts of the case is as follows: The plaintiff namely, Tirumala Tirupathi Devasthanams, Tirupathi has laid the suit based on the Will executed
by one S.Palanisamy Naidu in respect of the suit schedule property in favour of the plaintiff-temple. The subject Will dated 07.03.2005 is a
registered Will in respect of the selfacquired property of late Palanisamy Naidu.
As per the plaint, the suit property, which was purchased by one Palanisamy Naidu on 03.04.1972, was in his possession and enjoyment till his
death. Few months before his death, he renovated the property and reconstructed a new structure. Being his self-acquired property, he had
bequeathed it to Tirumala Tirupathi Devasthanams, Tirupathi. His wife and son were living separately and their relationship with Palanisamy Naidu
was not cordial. His attempt to re-unite with his wife and son did not materialise hence, he decided to bequeath the property to Lord
Venkateswara of whom he was devoted throughout his life. He wrote a letter dated 01.02.2005 to Tirumala Tirupathi Devasthanams, Tirupathi
expressing his intention to bequeath the property and sought advise. The plaintiff on receipt of his letter, replied stating that after execution and
registration of the Will, the Will may be sent to his office for taking necessary action. Accordingly, Palanisamy Naidu had executed Will on
07.03.2005. After his demise, his nephew Nandakumar informed to the plaintiff about Palanisamy Naidu will and his demise through the Will, the
plaintiff has secured the property. The defendants 1 and 2 had no right to deal with the property, but had entered into transaction with 3rd
defendant to defeat the right of the legatee secured the Will. Hence, the suit for declaration, possession and mesne profits.
While so, defendants 1 and 2, who are the wife and son of late Palanisamy Naidu respectively denying due execution of the Will had contested
the suit along with the 3rd defendant (subsequent purchaser) on the ground that defendants 1 and 2 along with the deceased Palanisamy Naidu
entered into an agreement on 24.01.2005 with the 3rd defendant in respect of the suit schedule property.
After the demise of Palanisamy Naidu on 07.03.2005, the legal heirs of Palanisamy sold the property to the 3rd defendant on 16.09.2009 and
delivered the possession to him. The sale agreement in favour of the 3rd defendant was entered on 24.01.2005 and a part consideration was
received on two occasions i.e on 24.01.2005 and 23.02.2005 by the deceased Palanisamy Naidu. The 1st and 2nd defendants had completed the
sale agreement by receiving balance sale consideration and executed the sale deed in favour of the 3rd defendant on 16.09.2005. The Will
perpetrated to have been executed in favour of the plaintiff temple bristles with suspicious and it was not executed voluntarily by late Palanisamy
Naidu. It is the handi-work of one Devaraj and Mr.Nanthakumar, who are inimical for defendants 1 and 2. The suit for injunction filed by the said
Devaraj and Nandakumar against defendants 1 and 2 in O.S.No.45 of 2006 before the Subordinate Judge of Ooty was dismissed for default and
subsequent suit in O.S.No.75 of 2006 is pending. To deprive the 1st and 2nd defendants the lawful right over the suit property, they have
engineered the suit based on the Will.
Palanisamy Naidu died on 07.03.2005 the date on which the alleged Will got executed and registered in favour of the plaintiff temple. There is
no reason to deprive defendants 1 and 2 of their rights over the suit schedule property through the alleged Will. The suspicious circumstances
prevails over the Will, since Palanisamy Naidu died on the date of execution of the alleged Will and he has not mentioned in the Will about
revocation of the earlier Will dated 03.11.2004 executed by Palanisamy Naidu in favour of the 1st defendant, when he was in good and sound
deposition of mind. The non-reference of the fact that Palanisamy Naidu had entered into a sale agreement with the 3rd defendant on 24.01.2005
based on the said agreement, the suit property has been sold to the 3rd defendant, therefore, the plaint becomes infrucutous.
As far as the 3rd defendant is concerned, in his written statement he has contended that Palanisamy Naidu along with his wife and son entered
into the sale agreement with the 3rd defendant and after his demise, the suit schedule property was sold to him by defendants 1 and 2 in the
following manner:-
(a)Under sale deed dated 16.09.2005(Doc No.4132/05): An extent of 4920 sq.ft of land and building.
(b)Under sale deed dated 28.09.2005 (Doc.No.4291/05):An extent of 1440 sq.ft of land and building
(c)Under sale deed dated 18.05.2006(Doc.No.2388/05):An extent of 2160 sq.ft of land and building)
The 3rd defendant/appellant being a bona fide purchase for valuable consideration, pursuant to the purchase, has taken possession of the entire
property and improved it. The suit based on the Will executed in a suspicious circumstances is not maintainable. The witnesses to the alleged Will
namely, Mr.Devaraj[PW-2] and Mr.Nanthakumar have filed a civil suit against them and therefore, making use of their proximity with Palanisamy
Naidu and undue advantage of his old age, they have fabricated the Will without valid consent.
Based on the plaint, written statement and additional written statement, the trial Court has framed the following issues:-
1.Whether the suit property is the selfacquired property of late Palanisamy Naidu?
Whether the Will of Palanisamy naidu dated 07.03.2005 executed in favour of Devasthanams is a genuine Will?
3.Whether the plaintiff Devasthanams is the owner of the suit property as per the Will?
4.Whether the plaintiff Devasthanams is entitled for the relief of declaration as sought for?
5.Whether the plaintiff Devasthanams is entitled for the relief of possession?
6.Whether the plaintiff Devasthanams is entitled for past and future mesne profits?
7.What other relief the plaintiff Devasthanams is entitled to?
To prove the case, the plaintiff-Devasthanams had examined 3 witnesses and had marked 17 exhibits. On the side of the defendants, the 3rd
defendant Mr.Manokaran, who is the appellant herein had been examined as DW-1 and 7 exhibits were marked in support of their defence.
The trial Court, after appreciating the evidence let in by the plaintiff-Devasthanams and the defence, has held that the plaintiff- Devasthanams
has proved the genuineness of the Will marked as Ex.A5 through PW-1, PW-2 and PW-3. Therefore, the plaintiff-Devasthanams is entitled for
the relief of declaration in respect of the suit property. The trial Court has further held that Ex.A16-sale deed dated 16.09.2005 is a fabricated
document and the defendants are liable to pay damages of Rs.4,80,000/- for the past use and occupation. In respect of future damages, the Court
has fixed Rs.20,000/- for a month to be paid from the date of filing of the suit till the date of delivery of possession. Thus, the suit has been allowed
with costs.
Aggrieved by the judgment and decree of the trial Court, the present appeal suit is preferred by the 3rd defendant/appellant on the ground that
Ex.A16 sale deed dated 16.09.2005 carries recitals referring the sale agreement entered by late Palanisamy Naidu on 24.01.2005. The Court
below ignoring the recitals had given much weight to the fact that the sale agreement entered by late Palanisamy Naidu destroyed after execution of
the sale deed, is unbelievable. The appellant being a bona fide purchaser for valuable consideration from the lawful owner, the suit ought not to
have allowed based on the Will fabricated by the interested persons. When the Will Ex.A5 has not been proved by the plaintiff-Devasthanams in
the manner known to law and failed to disclose any valid reason for disinheriting the legal heir should have been looked the Will with suspicious.
Further, the death of Palanisamy Naidu on the same day of executing the Will Ex.A5 in favour of the plaintiff- Devasthanams creates further doubt
about its genuineness.
While so, the Court below failed to see that PW-2[Mr.Devaraj] was an instrumental for creating Exs.A1, A2 and A5 in order to wreck
vengeance on the defendants. The Will, which is marked as Ex.A5 consists of two attesting witnesses out of which admittedly one of the attesting
witnesses is stranger to the Testator as well as the Document Writer. While PW-3-Document Writer admits that he did not draft the Will and he is
not well versed conversation with English, the Court below should have disbelieved the Will for the fact that neither the Executor Palanisamy Naidu
nor the Document Writer were not well conversing with English. When the content of the Will could not have been understood and executed by
Palanisamy Naidu and mysterious death of Palanisamy Naidu on the very date of executing Ex.A5-Will ought to have weighed the mind of the trial
Court to disbelieve the Will.
The point for consideration:-
Whether the plaintiff has proved the Will-Ex.A5 in the manner known to law? and if so, Whether it is entitled for the relief sought for?
The learned Senior Counsel appearing for the appellant would submit that there was no ill-will between Testator Palanisamy Naidu and his
wife and son who are defendants 1 and 2 in the suit. In the absence of strong reason to disinherit the natural heir and the fact that Palanisamy
Naidu, who was in the clutches PW-2[Devaraj] during his last days, was not taken proper notice by the trial Court. The very fact is that on the
date of executing Ex.A5-Will Palanisamy Naid, he was brought, to Kuppusamy Naidu Memorial Hospital, Coimbatore, ''dead''. The plaintiff-
Devasthanams has not produced the death certificate of Palanisamy Naidu, this should have been taken note by the trial Court. Contrarily, the trial
Court had disbelieved the case of the 3rd defendant regarding the sale agreement entered by Palanisamy Naidu and defendants 1 and 2 with him
during the life time of Palanisamy Naidu and the sale deed Ex.A16 executed by defendants 1 and 2 in favour of the 3rd defendant/appellant herein
after the demise of Palanisamy Naidu.
The learned Senior Counsel appearing for the appellant also submitted that the Court can compare the signature of the deceased Palanisamy
Naidu found in Ex.A5-Will and the sale deed Ex.A1, which will show that both are not similar and the possibility of forging the signature of
Palanisamy Naidu in Ex.A5-Will is probable. Further, the learned Senior Counsel appearing for the appellant submitted that the Will-Ex.A5 has
not been proved in the manner known to law.
In support of his submission, he relied upon the judgment of the Hon''ble High Court in E.Mani @ Balasubramanian v.
P.Viswanathan(deceased) and nine others reported in 2008(2) CTC 831 and submitted that the Will, which is one of the most solemn document
known to law, has to be proved by the propounder of the Will. Removing all suspicious circumstances and surrounding, the execution of the Will
to compliance of Section 63 of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872 is mandatory to hold up testament
called Will as genuine Will. In this case, Will being unnaturally improbable and unfair to the legal heir namely, wife and son ought to have been
viewed with utmost suspicious. The propounder of Will though being the plaintiff-Devasthanams, the man behind the entire crisis is PW-
2[Mr.Devaraj] who had meticulously created the document in the name of Palanisamy Naidu so as to defeat the lawful right of defendants 1 and 2.
The 3rd defendant, who is the bona fide purchaser for valuable consideration from the lawful owner cannot be deprive his right over the property.
Per contra, the learned counsel appearing for the 1st respondent/plaintiff would point out the deposition of PW-1 and PW-3 with reference to
Ex.A5 Will, the communication of Palanisamy Naidu with Tirumala Tirupathi Devasthanams-plaintiff expressing his intention to bequeath is
property to the plaintiff, the response of the plaintiff to his letter and would submit that the documents Exs.A1 and A2 will clearly show that the
execution of Will-[Ex.A5] by Palanisamy Naidu on 07.03.2005 was not a sudden event, but it is the consequence of consistent contemplation of
Palanisamy Naidu. Only his sudden death on the date of evening 07.03.2005, after registering the Will, is unexpected event. Till his death,
Palanisamy Naidu was keeping in good health and executed the Will Ex.A5 with good sound deposition of mind. The execution of the Will-Ex.A5
had been seen by the attesting witnesses and the attesting of the Will had been witnessed by the Executant. Having satisfied with the evidences of
PW1, PW2 and PW3 and the documents relied upon by the plaintiff, the trial Court has rightly allowed the suit. Further, the trial Court has also
negatived the plea of the defendants regarding the alleged sale agreement entered between the plaintiff and the others with the 3rd defendant, since
it has not seen the light of the day. Therefore, there is no substance in the Appeal Suit. Hence, it has to be dismissed with costs.
Heard the learned Senior Counsel appearing for the appellant and the learned counsel appearing for the 1st respondent and perused the
materials on record.
It is an undisputed fact that the suit property is a selfacquired property of late Palanisamy Naidu, which was purchased by him on 03.04.1972
from one K.T.Thomas and the same is also proved through Ex.A4. The said Palanisamy Naidu had thought fit to bequeath the said property to
and in favour of Tirumala Tirupathi Devasthanams-plaintiff. Therefore, late Palanisamy Naidu had expressed his wish to the Executive Officer of
Tirumala Tirupathi Devasthanams vide his letter, which is marked as Ex.A1 and the same was received by the Executive Officer on 04.02.2005. In
this letter, Palanisamy Naidu has sought for their advise, how to bequeath his suit property in favour of God Lord Venkateswara. In response to
his request, one Mr.A.P.V.N.Sarma, Executive Officer of Tirumala Tirupathi Devasthanams vide his letter dated 11.02.2005, which is marked as
Ex.A2, had informed Palanisamy Naidu that he has to execute the Will in favour of the Executive Officer, Tirumala Tirupathi Devasthanams duly
registering it in the office of Sub Registrar concerned and send the document to the office for taking necessary further action.
Thereafter, Palanisamy Naidu had executed the Will, which is marked as Ex.A5 incorporating in the recitals about his title, reason for
bequeathing the property in favour of Lord Venkateswara, his query with Tirumala Tirupathi Devasthanams and their reply. The demise of
Palanisamy Naidu, his nephew Nandakumar had informed the plaintiff- Tirumala Tirupathi Devasthanams about the death of Palanisamy Naidu and
had forwarded the Will to the plaintiff- Tirumala Tirupathi Devasthanams for further course of action. As a consequence, the present suit for the
relief of declaration and possession has been filed after issuance of notice marked as Ex.A6, which has been received by defendants 1 and 2.
Sofaras the notice sent to the 3rd defendant- R.Manoharan was returned as ''unclaimed''. The other defendants 1 and 2 though received the notice,
had not replied it.
To prove the Will marked as Ex.A5, the plaintiff-Tirumala Tirupathi Devasthanams has examined PW-2[Mr.Devaraj] and PW-3
[Mr.Pondurangan]. Ex.A5-Will dated 07.03.2005 is a registered document. The document has been presented before the Coimbatore District
Register Officer on 7th March 2005 between 01.00 p.m. to 02.00 p.m. and on the same day, it has been registered as Doc.No.109/2005/BK III.
Apart from the signature and LTI of Palanisamy testator, Devaraj, S/o I.V.Narayanaswamy and R.Udhayakumar, S/o K.C.Ramasamy have
signed in the Will as witnesses. One of the witnesses, Mr.Devaraj, who has been examined as PW-2 has filed proof affidavit in lieu of his chief
examination in which he has stated that late Palanisamy Naidu is his maternal uncle. The 1st defendant is his wife and the 2nd defendant is his only
son. The defendants 1 and 2 deserted Palanisamy Naidu and they were living separately for seven years. Till his death, they did not join with
Palanisamy Naidu.
The suit property was let out to Dr.Kurinchinathan for two years and thereafter Dr.Kurinchinathan vacated the premises. Palanisamy has
started living in the suit property after renovated the building during August 2004. Since Palanisamy Naidu wanted to bequeath his property to
Tirumala Tirupathi Devasthanams, he addressed a registered letter to Tirumala Tirupathi Devasthanams, which is marked as Ex.A1 indicating his
intention and seeking advise of Tirumala Tirupathi Devasthanams. After getting advise of Tirumala Tirupathi Devasthanams through letter marked
as Ex.A2 instructed Palanisamy Naidu to arrange Document Writer for preparation of the Will. Accordingly, Devaraj[PW-2] along with
Palanisamy Naidu went to the Document Writer. After being satisfied with content of the Will, which was prepared and kept typed by the
Document Writer, he and Palanisamy Naidu went to the Registrar Officer and Palanisamy Naidu signed in each page of the Will. After Palanisamy
Naidu fixing his signature, he and the other witnesses signed in the Will, which was witnessed by Palanisamy Naidu. Thereafter, the Document
Writer affixed his signature and the Will was registered on the same day. He identified Palanisamy Naidu to the Registrar and after due enquiry, the
Registrar admitted the document for registration.
The factum of witnessing Palanisamy Naidu affixing his signature in the Will and Palanisamy Naidu witnessing the attesting witnesses PW-2
[Devaraj] signing the Will is sworn by PW-2 Devaraj in his proof affidavit filed in lieu of chief examination. Thus, the statutory requirement of
Section 63 of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872 has been satisfactorily complied with by the plaintiff-
Tirumala Tirupathi Devasthanams, who is the propounder of the Will.
To add credence to the evidence of PW-2 [Devaraj], the prosecution has examined the scribe of the Will as PW-3[Palanisamy]. Both PW-2
and PW-3 had been incisely cross examined by the 3rd defendant''s counsel. To the suggestion that Palanisamy Naidu was not in good state of
mind on the date of executing the Will and he was a drunken and inebriated mood, has been denied by the witness.
The other reason stated by the learned Senior Counsel appearing for the appellant to suspect the Will is that he died on the date of executing
the Will Ex.A5. A perusal of endorsement made in Ex.A5-Will indicates that the Will was registered between 01.00 p.m. to 02.00 p.m., on
07.03.2005. Whereas from the evidence of PW-2[Devaraj] on 07.03.2005 at night 10.00 p.m., Palanisamy Naidu has developed some uneasy
and he has been taken to GKNM Hospital by one Sampath, a nearby residence. Around 11.00 p.m., PW-2[Mr.Devaraj] was informed about his
death and he has gone to the hospital immediately. In the cross examination, PW-2[Devaraj] admits that Palanisamy Naidu is a heart patient and
he was taking treatment at Kuppusamy Naidu Hospital. However, he was hail and healthy and used to self-drive his car. He has denied the
suggestion put to him that the Will Ex.A5 was stealthily got executed by him and his brother Nandakumar by inducing Palanisamy Naidu by
administering liquor.
This contention is baseless. If there was any doubt in the death of Palanisamy Naidu, the defendants 1 and 2 who are the wife and son of
Palanisamy Naidu, would have probed into it and could have placed document contra to the evidence deposed by PW-2[Devaraj]. In this case,
though defendants 1 and 2 had filed their written statement, they have not mounted the witness box to support their case. Whereas, the 3rd
defendant, who claims right over the suit property by virtue of sale deed marked as Ex.A-16 dated 16.09.2005, is not even able to establish how
his vendor namely, defendants 1 and 2 are entitled to alienate the property. According to defendants, Palanisamy himself along with the defendants
1 and 2 entered into an agreement with the 3rd defendant in respect of the suit schedule property on 24.01.2005. If it is true, the defendants would
have marked this document. The reason adduced by the defendants for non-production of the said agreement is that after executing the sale deed
on 16.09.2005, the agreement copy had become redundant and therefore, they have destroyed it. The said reason appears to be very childish,
when one of the parties to the agreement namely, Palanisamy Naidu died before executing the sale deed and the said person being the absolute title
holder of the property, no prudent man will destroy the document executed by the title-holder, when the legal heirs of Palanisamy Naidu were not
living with Palanisamy Naidu for a long time till his death.
Instead of producing the sale agreement, the 3rd defendant had tried to establish the factum of agreement with Palanisamy Naidu and payment
of advance towards the suit property through a letter alleged to have issued by his Auditor Mr.V.Somasundaram, which has been marked as
Ex.B1. This letter is dated 26.05.2006. The author of the document namley, Mr.V.Somasundaram, Auditor has not been examined nor family
member of Palanisamy Naidu namely, defendants 1 and 2, who had supported the case of the 3rd defendant, in this regard had mounted the
witness box. In the absence of substantial evidence to show Palanisamy Naidu agreed to sell the suit property to the 3rd defendant and pursuant to
that, Ex.A16 sale deed was executed by his legal heirs, on the demise of Palanisamy Naidu, the defence put forth by the 3rd defendant cannot
stand the scrutiny of law to torpedo the plea of the plaintiff- Tirumala Tirupathi Devasthanams regarding title and the relief of declaration.
Yet another ground raised by the learned Senior Counsel appearing for the appellant is that there is the Will to dis-entitle the legal heir of late
Palanisamy Naidu without reason. Therefore, the Will has to be rejected as suspicious Will created by PW-2[Devaraj] and his brother to defeat
the lawful right of the defendants. To buttress the plea, the previous suits between the defendants and PW-2[Devaraj] had been quoted and also
suggestion to that effect is made to PW-2[Devaraj] during in his cross-examination.
First of all, it is to be noted that PW-2[Devaraj] is not the beneficiary of the Will. He had only assisted Palanisamy Naidu to execute the Will in
favour of the plaintiff- Tirumala Tirupathi Devasthanams, which is a religious Institution. The recitals of the Will clearly indicated that why
Palanisamy Naidu inclined to bequeath the property to the plaintiff- Tirumala Tirupathi Devasthanams. He has put on record through Will as a
recital that he had given up the entire ancestral property to his legal heirs including his wife and his only son during his lifetime in order to avoid
future conflict. Whereas the suit property being his self-acquired property and he wanted to bequeath his self-acquired property to his beloved
God Lord Venkateswara at Tirumala Tirupathi Devasthanams due to his piousness to his glorious god.
The factum that Palanisamy Naidu has given up his ancestral property to his wife and son, who are arrayed as defendants 1 and 2, has not
been disputed through evidence. Further, though in the written statement it is pleaded that Palanisamy Naidu is an atheist (Nathigan) and there is no
necessity for him to bequeath the property to Tirumala Tirupathi Devasthanams, no piece of evidence has been let in to show that Palanisamy
Naidu is an atheist (Nathigan). Thus, it is very clear that the defendants who are aware of the fact that Palanisamy Naidu had voluntarily and with
full knowledge and consent had bequeathed the property in favour of the plaintiff-Tirumala Tirupathi Devasthanams, want to grab the property by
questioning the Will Ex.A5 as if the execution of the Will is surrounded with suspicious.
The reasons to suspect the Will are all found to be fallacious without any material but only for the sake of opposing the Will. The trial Court
after considering all these aspects had rightly arrived at the conclusion that the plaintiff- Tirumala Tirupathi Devasthanams has proved the Will-
Ex.A5 in the manner known to law and therefore, it is entitled for the relief as prayed for before the trial Court.
Going through the facts of the case and perusing Ex.A5-Will in the light of the evidence let in by the plaintiff- Tirumala Tirupathi Devasthanams
and the defendants, this Court find that the suspicious circumstances projected by the 3rd defendant/appellant herein does not carry much weight,
since the plaintiff- Tirumala Tirupathi Devasthanams has discharged the onerous of proving the Will by examining the attesting witnesses and the
scribe. The genuineness of the signature of the testator cannot be doubted, just because, it has certain variation on comparing the document, which
was executed several years back. Even if the legal heirs have been dis-entitled, though not proved, when the legitimate suspicious removed by
propounder, this Court is bound to accept the Will. In this case as pointed out earlier, the testator had been expressing intention to bequeath the
Will by writing the letter to Tirumala Tirupathi Devasthanams and only taking on their advise, he has executed the Will. Therefore, the desire of the
death man to bequeath his self-acquired property to his beloved God Lord Venkateswara cannot be substituted by avarices of the legal heirs or
any third party, who claims himself to be a bona fide purchaser of the property.
This Court, after anxious consideration to the submissions made on behalf of the appellant, find that there is no substance in the appeal and
therefore, this Appeal Suit is liable to be dismissed with costs.
In the result, Appeal Suit is dismissed with costs. The judgment and decree of the trial Court viz., Additional District Judge (Fast Track Court
No.II), Coimbatore, in O.S.No.171 of 2007, dated 28.09.2010 are hereby confirmed. Consequently, connected Miscellaneous Petitions are also
dismissed.