S.A.No.665 of 2025

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on 17.10.2025

Pronounced on 09. 01.2026

CORAM

THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN

THILAKAVADI

S.A.No.665 of 2025 and

C.M.P. No.23816 of 2025

T. Rajeshwari ...Appellant

Vs.

1. P. Karunambigai

2. Vijayalakshmi

3. Indrani ...Respondents

Prayer : Second Appeal filed under Section 100 CPC, 1908 against the

decree and judgment dated 17.06.2025 passed in A.S. No.17 of 2024, on

the file of the I Additional District Court, Coimbatore, confirming the

Judgment and decree dated 22.01.2024 passed in O.S. No.39 of 2010, on

the file of the Sub Court, Pollachi.

For Appellant : Mr. Srinath Sridevan, Senior Advocate

for Mr. Praveen S. Kumar

For Respondents : Mr. P. Valliappan, Senior Advocate

for Mr. T. Deeraj

for M/s. P.V. Law Associates for R1

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Mr. M. Madhan Kumar for R2 and R3

JUDGMENT

The present Second Appeal is preferred against the judgment and

decree dated 17.06.2025 in A.S. No.17 of 2024 on the file of I

Additional District Court, Coimbatore, confirming the judgment and

decree dated 22.01.2024 passed in O.S. No.39 of 2010 on the file of the

Sub Court, Pollachi.

2. The 1

st

respondent, as plaintiff, filed the above suit for partition,

claiming 1/3rd share in the suit properties and for separate possession.

3. The plaintiff and the defendants 1 and 2 are the sisters of one

Thirugnana Shanmugam and the 3

rd

defendant is the wife of the said

Thirugnana Shanmugam.

4. According to the plaintiff, one Mylsamy Gounder was the

absolute owner of the suit properties situate in Naickenpalayam Village,

Pollachi Taluk. He and his wife, Valliammal had four daughters, namely,

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Karunambigai, Vijayalakshmi, Tamilarasi and Indirani and one son

Thirugnana Shanmugam. After the demise of Mylsamy Gounder, his wife

and four daughters executed a release deed dated 25.11.1981 in favour of

Thirugnana Shanmugam, who thereafter married one Rajeswari, who is

the appellant herein. The said Thirugnana Shanmugam passed away on

24.01.2010. During his life time, he gifted a house property on

23.05.2007 in favour of his sister Tamilarasi, who was financially weak.

Considering the facts that he was issueless; that his wife Rajeswari was

financially strong, and that he was suffering from heart ailments,

executed a Will dated 07.10.2009, bequeathing the suit 'A' schedule

property to his sisters Karunambigai, Vijayalakshmi and Indirani and the

suit 'B' schedule property to his wife Rajeswari. Though she was initially

granted only a life estate in the 'B' schedule property, the latter portion of

the Will vested absolute ownership upon her. While so, the said

Rajeswari, after the demise of her husband, mutated the revenue records

in her favour and attempted to create third party interest in the suit

properties with the intention of defeating the rights of the sisters as

conferred under the Will. In these circumstances, the sister Karunambigai

instituted a suit in O.S. No.39/2010 before Sub Court, Pollachi, seeking

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S.A.No.665 of 2025

1/3 share in the suit properties. The other sisters Vijayalakshmi and

Indirani were arrayed as defendants 1 and 2 in the above suit. The said

Rajeswari was arrayed as the 3

rd

defendant in the above suit. The said

Raheshwari resisted the suit on the ground that her husband would not

have thought of executing a Will at that young age, that too, disinheriting

his wife. Her further submission is that, her husband was hale and healthy

till his death. The Will has been fabricated by the sisters of her husband

with an intention to grab the properties from her. Hence, prayed for

dismissal of the suit.

5. The learned trial judge, proceeded to consider the validity of the

Will. The suit was decreed with respect to 'A' schedule property and

dismissed the relief with respect to 'B' schedule property. Aggrieved by

this, the wife/3

rd

defendant preferred the appeal suit in A.S. No. 17 of

2024 before the I Additional District Court, Coimbatore. The first

appellate court dismissed the appeal by confirming the judgment and

decree passed by the trial court.

6. Challenging the same, the 3

rd

defendant has preferred the present

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Second Appeal.

7. The Second Appeal is admitted on the following substantial

questions of law:

“1. Whether the judgments of the courts below are perverse in

rendering a finding that the Will dated 07.10.2009 is proved in

accordance with law?

2. Whether the courts below erred in ignoring the vital documents,

that is, the expert opinion while deciding the genuineness of the

Will?”

8. Mr. SrinathSridevan, learned Senior Advocate appearing for

Mr.T. Deeraj, learned counsel on record for the appellant / 3

rd

defendant

would submit that, to prove the Will, plaintiff has to examine the attesting

witnesses as per Section 63 of Indian Succession Act, 1925, and Section

68 of the Indian Evidence Act, 1872. He would submit that Section 69 of

Indian Evidence Act, 1872, will not apply to the present case for the

reason that, the plaintiff had examined the wives of the attesting

witnesses, namely Muthu Kumar and Kumar, as P.W.2 and P.W.3, without

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examining one another attesting witness Marimuthu in the alleged Will.

He would further submit that Section 69 of the Indian Evidence Act, 1872

will apply only when no attesting witness is available and that the onus

is on the plaintiff to prove that there is no attesting witness. He would

further contend that even a mere statement that attesting witness was won

over by the opposite party is not sufficient to prove his absence. Where

there are attesting witnesses capable of being produced, all means of

compelling the appearance has to be exhausted. In case of documents

required by law to be attested, not only the executant's signature is to be

proved but it is also to be proved that the document was duly attested.

The present case does not fall under any of the exceptions under Section

69 and 70 of the Indian Evidence Act, 1872. To support his contentions

he has relied upon the following judgments:

1. Doraiswami vs. Rettinammal reported in AIR 1978 Mad 78

2. Babu Singh and others vs. Ram Sahai Alias Ram Singh

reported in (2008) 14 SCC 754

3. Seethaiammal (died) & others vs. Ramakrishnan Asari (died

and others) reported in 2017 SCC OnLine Mad 38173

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9. The learned counsel for the appellant would further submit that,

the expert opinion in the present case holds that the signature in the Will

does not belong to Thirugnana Shanmugam. Therefore, the non

compliance of Section 69 of the Indian Evidence Act, 1872 assumes

greater significance in the benefit of doubt cast upon the Will and the

handwriting expert. His further contention is that, the Will is made 3

months prior to the death of the Thirugnana Shanmugam and the suit

was filed within 35 days from the date of his demise. The plaintiff has

clandestinely omitted to examine the other attesting witness Marimuthu.

The plaintiff has allegedly called all her family members for a meeting on

the sixteenth day after Thirugnana Shanmugam's death to open a sealed

cover containing the alleged Will and strangely the appellant was not

called even as per the plaintiff to participate in the meeting. Whereas, the

specific case of the plaintiff is that she was with the appellant in the

deceased’s house for the sixteenth day ceremony. That being the case, it

cannot be believed that the plaintiff would have opened the sealed cover

of the deceased on the same day in the absence of the appellant. His

further contention is that, since the defendants 1 and 2 have conceded to

the claim made in the plaint, there is no cause of action for a partition suit

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and they could have simply executed a partition deed among themselves.

The above facts would go to show that, in order to deprive the valuable

rights of the appellant / 3

rd

defendant, the present partition suit has been

filed by the plaintiff. The courts below, without considering the above

facts, erroneously decreed the suit in favour of the plaintiff, which

warrants interference by this Court.

10. On the other hand, Mr. P. Valliappan, learned Senior Advocate,

appearing for Mr. T. Deeraj, learned counsel on record for the 1

st

respondent would submit that, considering the facts that he was issueless

and his wife was financially secured, and also considering his heart

ailments, the deceased ThirugnanaShanmugam executed a Will on

07.10.2009 bequeathing the suit 'A' schedule property to his sisters and

'B' schedule property to his wife. Since the whereabouts of Marimuthu,

one of the attesting witnesses, was unknown, he was not examined by the

plaintiff. However, the plaintiff has examined the wives of the deceased

attesting witnesses Muthu Kumar and Kumar to identify their signatures.

Moreover, the forensic expert, who issued Ex.B11, during cross

examination admitted that her report contained errors, lacked supporting

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photographs and analysis report and did not meet the standards required

under law. He would submit that an expert opinion is immaterial in

determining the validity of the Will. Expert opinion cannot influence the

finding as to the genuineness of the Will. To support his contention he has

relied upon the following judgments:

1. 2018 (3) MWN (Civil) 584

2. 2023(2) MWN (Civil) 509

3. AIR 1989 Kerala 228

He would further submit that during cross examination, D.W.1 and D.W.3

affirmed that the signature appearing on Ex.A1 Will belonged to Late

Thirugnana Shanmugam. No contrary evidence was produced by the

appellant to discredit their testimony. The trial court below upheld the

validity of Ex.A1 Will and rightly decreed the suit and the same was

confirmed by the first appellate court. He would further submit that only

the attesting witnesses are competent to identify the testator's signature

under the combined operation of Section 63 of Indian Succession Act,

1925 and Sections 68 and 69 of the Indian Evidence Act, 1872. Since the

attesting witnesses were unavailable, the requirements under Section 69

of the Evidence Act, 1872, were duly fulfilled, as the signatures of the

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attesting witnesses were properly identified by their wives. The

requirement to prove the signature of the person executing the document

as being in his handwriting is a general rule not applicable to Wills, in

view of the express provisions of Section 63A of the Indian Succession

Act, 1925. To support his contentions, he has relied upon the judgment

reported in AIR 1989 Kerala 228. Thus, it is urged that the testator's

signature was conclusively proved and the issue concerning of non

examination of another witness Marimuthu was neither raised before the

courts below and therefore, the same cannot be raised for the first time

during the course of arguments in the Second Appeal. He would further

submit that the appellant herself, during her examination, admitted

about the existence and knowledge of the Will, though she initially

feigned ignorance of the Will in her written statement. Therefore, the

appellant was fully aware of the Will and has taken false defenses

through out. In fact, her husband had made ample provisions for her in

the Will by bequeathing the 'B' schedule property, gifting her a house

worth Rs.60,00,000/- and ensuring she had independent ownership of 6

acres of agricultural lands. Though, initially the appellant was granted

only a life estate in the 'B' schedule property under the Will, the latter

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portion of the Will vested absolute ownership upon her. The intention of

the testator must be ascertained from all the clauses of the Will, and that

the latter clause shall prevail over the earlier one. To support his

contention, he has relied upon the following reported judgments:

1. AIR 1955 SC 2491

2. 2011 (6) CTC 172

He would submit that it is settled principle that concurrent findings of

fact, even if erroneous, cannot be interfered with under Section 100 of the

Code of Civil procedure, unless perversity is shown. In the present case,

both the courts below, have correctly appreciated the evidence and

rendered well reasoned findings, free from any perversity. To support his

contentions, he has relied upon the following judgments:

1. AIR 1999 SC 2213

2. AIR 1999 SC 1441

3. 2006 AIR SCW 2404

4. AIR 2019 SC 1441

Hence, prays for dismissal of the Second Appeal.

11. Heard on both sides. Records perused.

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12. The solitary controversy raised in this regular Second Appeal

relates to the genuineness or validity of the Will, Ex.A1 alleged to have

been executed by Thirugnana Shanmugam on 07.10.2009 bequeathing

the suit 'A' schedule properties to his sisters namely, the plaintiff and the

defendants 1 and 2 and the suit 'B' schedule property to his

wife/appellant/3

rd

defendant. It is not a matter of dispute that by now

different courts including the final one have laid down a number of tests

to judge the nature and standard of evidence required to prove a Will,

some of these being that but for the requirements of Section 63 of the

Succession Act and 68 of the Evidence Act, a Will has to be proved like

any other document to the satisfaction of a prudent mind. However, what

makes a Will to differ from any other document is that it speaks from the

death of the testator and this aspect introduces an element of solemnity in

the decision of the question whether the document is proved to be the

testament of the testator. Further, cases in which the execution of the Will

is surrounded by suspicious circumstances, such as, unfair and unjust

disposition of property and the propounder taking a leading part in the

making of the Will under which he/she receives a substantial benefit,

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have to be dispelled by the propounder. The presence of such suspicious

circumstances makes the initial onus heavier on the propounder. The

plaintiff was duty bound to examine at least one attesting witness to

prove the execution of the Will, Ex.A1. It has come in evidence that two

attesting witnesses, namely, Muthu Kumar and Kumar died before they

could be examined as witnesses. The other attesting witness, namely

Marimuthu, had been given up by the plaintiff. However, the plaintiff

had examined the wives of the deceased witnesses. A will ordinarily must

be proved keeping in view the provisions of Section 63 of the Succession

Act and Section 68 of the Indian Evidence Act. However, when the

attesting witness is either dead or out of jurisdiction of the Court or kept

out of the way by the adversed party or cannot be traced, despite diligent

search, the Will may be proved in the manner indicated in Section 69 of

the Indian Evidence Act.

13. Section 69 of the Indian Evidence Act reads, thus:

“69. Proof where no attesting witness found.––If no such

attesting witness can be found, or if the document purports to

have been executed in the United Kingdom, it must be proved

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that the attestation of one attesting witness at least is in his

handwriting, and that the signature of the person executing the

document is in the hand writing of that person.”

14. In the case of KL.Anandan vs. State of Kerala reported in

AIR 1989 Kerala 228, it was held that it is sufficient if the signatures of

the attesting witnesses are identified. The requirement to prove the

signature of the person executing the document as being in his

handwriting is a general rule not applicable to Wills, in view of the

express provisions of Section 63(a) of the Indian Succession Act, 1925.

The Court further clarified that there is no necessity to prove that the

signature of the executant is in his handwriting. This Court in Selva

Subramanian vs. Subbarathinam reported in 2015 (2) MWN (Civil) 415

held that it is sufficient if one witness is examined to identify the

signature of either one of the attestors, in which case the Will shall be

deemed to be proved. In the present case, the plaintiff has examined

P.W.2 and P.W.3, wives of the deceased attesting witnesses, namely

Muthu Kumar and Kumar, to identify the signatures of the attesting

witnesses. In cases where the attesting witnesses are unavailable, any

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competent witness to identify the signatures of the attesting witnesses is

sufficient and it is not necessary to separately prove the signature of the

testator, as the latter requirement applies to registered documents other

than a Will. The non examination of one of the attesting witnesses,

namely Marimuthu, is not fatal to the plaintiff's case. Therefore, the

requirements under Section 69 of the Evidence Act, 1872, were duly

fulfilled, as the signatures of the attesting witnesses were properly

identified and the testator's signature was conclusively proved.

Moreover, only during the course of arguments, for the first time in the

Second Appeal, and without any factual basis, contended that Section 69

was inapplicable on the ground that the death of Marimuthu had not been

established. This issue was neither raised before the first appellate court

nor included in the grounds of Second Appeal and being a pure question

of fact, cannot be introduced for the first time during the course of

arguments in the Second Appeal (Ref: AIR 1966 SC 1953, 2015 (2)

CTC 262, 2022 (1) MWN (Civil) 530 and 2023 (5) CTC 138).

15. Regarding the contention that the Will was not read over to the

appellant, she herself admitted in cross examination that disputes arose

among family members on the sixteenth day after the death of her

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husband in respect of the alleged Will. With regard to the forensic

expert's report marked as Ex.B11, the expert in her cross examination has

revealed the glaring deficiencies and procedural non compliances.

Moreover, it is well settled that forensic Reports have no determinative

value in matters relating to Wills, as their probative value is limited.

16. Furthermore, it is not in dispute that the testator Thirugnana

Shanmugam died issueless and the appellant is financially secured.

Therefore, there is nothing strange the appellant / wife is disinherited.

However, the testator under the Will has bequeathed 'B' schedule property

to the appellant / wife.

17. Coming to the aspect of the scope of the Second Appeal under

Section 100 of the Code of Civil Procedure, it is no more res integra, as

several judgments have been rendered by the Hon'ble Apex Court and

this Court explaining the scope and limitations contained in Section 100

of the Code of Civil Procedure. While deciding an appeal and the

provisions of Section 100 of the Code of Civil Procedure, the scope is

very narrow and limited to examine only if there is any perversity or

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illegality or arbitrariness in the judgment rendered by both the trial court

and the first appellate court. It is also relevant to mention that the aspect

of perversity has been the subject matter of several decisions again

rendered by the Hon'ble Apex Court that, unless the findings of the courts

based on evidence both oral and documentary are perverse, this Court

cannot in the Second Appeal decide for its own opinion being different

from that of the two courts to decide the same as perverse. It is also

necessary to mention that when two courts have recorded a concurrent

finding on fact, this Court in Second Appeal should be circumspect in

interfering with such findings of fact unless it is shown that there is

serious perversity having been committed by both the courts. The two

courts below have correctly understood the facts of the case and rightly

concluded the Will to be genuine and valid. Hence, no interference

warrants.

18. In the result,

i.The Second Appeal is dismissed. No costs. Consequently,

connected miscellaneous petition is closed.

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ii.The decree and judgment dated 17.06.2025 passed in A.S.

No.17 of 2024, on the file of the I Additional District Court,

Coimbatore, confirming the Judgment and decree dated

22.01.2024 passed in O.S. No.39 of 2010, on the file of the Sub

Court, Pollachi, is upheld.

--.01.2026

Index: Yes/No

Internet: Yes/No

Speaking/Non-Speaking order

bga

To

1. The I Additional District Judge, Coimbatore.

2. The Sub Court, Pollachi,

3. The Section Officer, VR Section, High Court, Madras.

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K.GOVINDARAJAN THILAKAVADI,J.

bga

Pre delivery judgment in

S.A.No.665 of 2025 and

C.M.P. No.23816 of 2025

--.01.2026

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