Isabella Mariam

The Madras High Court, Single Bench of Justice V. Sivagnanam dismissed an appeal challenging a decree for partition and upheld the trial court's decision granting 17/24 shares in ancestral properties to the plaintiffs. The court found that the Will purportedly executed in 1950 was not proven in accordance with legal requirements and held that the plaintiffs, being legal heirs of Kuppusamy Pillai, were entitled to a share of the properties.

The origins of the dispute date back to the family of Kuppusamy Pillai, who had two wives: Thayarammal (first wife) and Amaravathi (second wife). The marriage between Kuppusamy and Amaravathi was conducted on 25.10.1926, well before the enactment of the Hindu Succession Act, 1956. From his first marriage, Kuppusamy had three sons: Arumugham, Subramaniam, and Shanmugham. Shanmugham died unmarried and without issue. Arumugham was survived by a single daughter, Rani (first defendant), and Subramaniam had one son, Vaidyanathan (second defendant), and three daughters: Kalvikarasi (third defendant), Senthamizhselvi (fourth defendant, now deceased), and Vijaya (ninth plaintiff). From his second wife Amaravathi, Kuppusamy had four daughters: Dhanalakshmi, Meenakshi, Sakkubai, and Saroja.

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The plaintiffs included legal heirs of Amaravathi and Subramaniam’s daughters. Dhanalakshmi's children (plaintiffs 1 to 3), Meenakshi's husband and children (plaintiffs 4 to 6), and daughters Saroja and Vijaya (plaintiffs 7 and 8) filed a suit for partition, claiming that Kuppusamy’s properties were self-acquired and had not been partitioned during his lifetime. The plaintiffs contended that all heirs were entitled to an equal share. They maintained that they had not been made parties to any prior transactions such as the release deed from Arumugham to Subramaniam or the alleged Will dated 10.09.1950.

The appellants, defendants in the original suit, contested these claims. They asserted that Kuppusamy had executed a Will on 10.09.1950, which exclusively bequeathed his properties to his male heirs. They argued that the Will, being over 30 years old, should be presumed valid under Section 90 of the Indian Evidence Act. They further claimed that following the Will, the three sons had partitioned the properties in 1953, and after Shanmugham's death, his share reverted to the other two brothers. In 1958, Arumugham had executed a release deed in favour of Subramaniam, who then solely enjoyed the properties. Upon Subramaniam’s death, only his son, Vaidyanathan (second defendant), was entitled to inherit the properties.

The trial court examined the oral and documentary evidence submitted by both parties. On the plaintiffs’ side, one witness was examined and Exhibits A1 to A7 were submitted. The defendants produced three witnesses and submitted Exhibits B1 to B15, including the Will (Ex. B4) and letters (Ex. B1 and B2) referring to it. An additional document was marked as Exhibit X1.

The trial court rejected the Will on the basis that it was not proven according to the standards required by law, and declared that the plaintiffs were entitled to 17/24 shares in the B schedule properties. The remaining shares were attributed to the legal heirs of the first wife and Subramaniam’s male heir.

Justice V. Sivagnanam commenced the legal analysis by confirming the genealogical details and the status of the wives and children. He noted:

"The relationship is admitted by the parties."

The ownership of the suit properties by Kuppusamy was also undisputed. The court recorded that the properties were acquired by Kuppusamy through a sale deed dated 09.10.1936 (Ex. B3). Since the properties were self-acquired, and no valid Will had been proved, the court held that they would devolve equally among all legal heirs upon his death.

A pivotal point was the alleged Will dated 10.09.1950 (Ex. B4). The defendants sought to rely on Section 90 of the Evidence Act to establish a presumption of validity due to the document's age. The court addressed this argument in detail:

"Section 90 of the Evidence Act does not apply in the case of Wills."

Quoting the Supreme Court judgment in Ashutosh Samanta (D) by LRs vs. SM. Ranjan Bala Dasi and others (2023 SCC OnLine SC 255), the court noted:

"The presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills, which have to be proved in terms of Sections 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872."

Further elaborating, the court stated:

"A Will has to be executed in the manner required by Section 63 of the Succession Act. Section 68 of the Evidence Act requires the Will to be proved by examining at least one attesting witness."

Justice Sivagnanam found that the Will was not proved through any attesting witnesses and was surrounded by suspicious circumstances. He also referred to previous judicial precedents, including:

• 2024 SCC OnLine Mad 5153 (Marathal (Died) and another vs. Kanniammal (Died) and others)

• (2024) 5 MLJ 282 (K. Rajeswari and others vs. Kungumayee (Deceased) and others)

However, the court rejected their applicability in light of binding precedent from the Supreme Court:

"The judgment relied on by the learned counsel appearing for the appellants to support his argument that the Will being more than 30 years old and the presumption under Section 90 of the Act is inapplicable and has no merit and [is] rejected."

On the point of division of shares, the court noted that with Shanmugham dying without heirs, and each of the remaining sons and daughters of Kuppusamy entitled to a 1/6 share. This cumulative total added up to 17/24 shares for the plaintiffs.

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The court held:

"In the absence of the Will dated 10.09.1950 Ex. B4, the legal heirs of Kuppusamy Pillai are entitled to have equal shares in his properties after his death."

Thus, the judgment of the trial court was affirmed.

The Madras High Court upheld the trial court’s preliminary decree, confirming that the plaintiffs were entitled to 17/24 shares in the B schedule properties. The decree directed partition by metes and bounds into 24 equal parts, with 17 shares to be allotted to the plaintiffs.

"The judgment and decree of the trial Court is hereby confirmed and the appeal suit is dismissed. No costs. Consequently, the connected miscellaneous petition, if any, is closed."

Advocates Representing the Parties

For the Appellants: Mr. K. Govi Ganesan
For the Respondents: Mr. S. Rajavelavan

Case Title: Rani and Others vs. T.N. Vayamani (Deceased) and Others
Case Number: A.S.No.13 of 2014
Bench: Justice V. Sivagnanam

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