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Ponnammal v/s S. Veeralakshmi (Died) & Others


    C.R.P.(MD). No. 1942 of 2019 & C.M.P(MD) No. 9928 of 2019

    Decided On, 15 September 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MRS. JUSTICE S. ANANTHI

    For the Petitioner: G. Gomathisankar, Advocate. For the Respondents: R3 & R4, A.S. Vijayaragavan, Advocate.



Judgment Text

(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order, dated 22.02.2019 in O.S.No. 138 of 2016 on the file of the Principal District Court, Dindigul, Dindigul District and allow this Civil Revision Petition.)1. This Civil Revision Petition has been filed against the order, dated 22.02.2019 in O.S.No.138 of 2016, passed by the learned Principal District Judge, Dindigul, Dindigul District.2. Originally, the suit in O.S.No.138 of 2016 was filed by the deceased plaintiff/respondent herein for partition. During the course of evidence through Chief examination affidavit, the revision petitioner/1st defendant had filed a document, dated 09.09.2015 as Will which is unregistered one. But, the plaintiff has raised an objection that the unregistered document is not a Will and stated as settlement deed.3. Thereafter, after hearing both sides with respect to admissibility of the unregistered document, dated 09.09.2015, the learned Principal District Judge, Dindigul, Dindigul District, has passed an order, dated 22.02.2019. Aggrieved by the said order, the revision petitioner is before this Court.4. Heard Mr.G.Gomathisankar, learned counsel appearing for the petitioner and Mr.A.S.Vijayaragavan, learned counsel appearing for R-3 & R-4. Perused the material documents available on record.5. The Civil Revision Petition has been filed by the revision petitioner against the order, dated 22.02.2019 in O.S.No.138 of 2016, passed by the learned Principal District Judge, Dindigul, Dindigul District.6. The plaintiff has relied upon the Judgment reported in 1979(2)MLJ 88, Ramasamy Naidu Vs.M.S.Velappan and Others. In that Judgment, the Court held that;“...following are some of the important tests to determine whether a document is a Will or a settlement,(i) the nomenclature used by the settlor in styling the document;(ii) the express dis-positive words used which touch upon the time when the vested interest is created;(iii) reservatior, of the power of revocation in the instrument;(iv) the effect of the reservation of a life estate in favour of the executant under the instrument;(v)registration of the document under the appropriate law.....In other words, it is necessary to find out the nature of disposition in the document in question; Whether there is transfer of any interest in praesenti in favour of the settlee or whether the document provides for the transfer of interest in favour of the beneficiary on the death of the executant;.”7. The first defendant who filed the document claimed as it is a Will. The recitals contained in the documents are contrary to each other. The following statements are contained in the document.“TAMIL”8. The another portion of the statement is extracted hereunder:“TAMIL”9. The document is not a registered one. The intention of the executor has to be found out by the reading of entire recitals in the document.10. The final portion contained in the Will reveals that it can be altered or cancelled during the life time of the executor.11. There is no evidence to show that the possession was taken and the deed was acted upon immediately. As per recital it come into force after the death of the executor.12. Will can be proved only by examining attestor and after examining the attestor we can decide it as Will or settlement deed. Now, it is in premature.13. Hence, this Court is inclined to set a

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side the order, dated 22.02.2019. If necessary, the Court can hear the matter after attesting witnesses are examined.14. In fine, this Civil Revision Petition is allowed by setting aside the order, dated 22.02.2019 in O.S.No.138 of 2016 passed by the learned Principal District Judge, Dindigul, Dindigul District. No Costs. Consequently, connected miscellaneous petition is closed.
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