Madras High Court
P.P. Vasantha vs B.S.Hemavathy
Author: N. Sathish Kumar
Bench: N.Sathish Kumar
In the High Court of Judicature at Madras RESERVED ON DELIVERED ON 13-07-2018 23-08-2018 Coram: The Hon'ble Mr.Justice N.SATHISH KUMAR T.O.S.No.7 and 8 of 2005, Tr.C.S.Nos.350 and 596 of 2005 and Tr.C.S.No.80 of 2016 T.O.S.Nos.7 and 8 of 2005 (O.P.Nos.58 and 59 of 2005) 1. P.P. Vasantha ... Plaintiff [in both TOS] Versus 1. B.S.Hemavathy 2. B.S.Sujatha Visalakshi 3.B.S.Prasanna Kumar ... Defendants [in both TOS] Petitions filed for the grant of Letters of Administration with will annexed dated 12.06.1995 and 8.6.1995 under Section 232 and 276 of the Indian Succession Act 1925, read with Order XXV Rule 5 of the Original Side Rules of Madras High Court, 1956. For Plaintiff .. Mr.V. Balasubramanian [in both TOS] For Defendants .. Mr.T. Karunakaran [in both TOS] Tr.C.S.No.350 of 2005 1. B.S.Hemavathy 2. B.S.Sujatha Visalakshi 3.B.S.Prasanna Kumar ... Plaintiffs versus 1. The Government of Tamil Nadu, Rep by the Secretary, Health and Family Welfare Department, Fort St.George, Chennai 600009. 2. The Accountant General (Accounts) of Tamil Nadu Chennai 600018. 3. The Dean, The Madras Medical College, Chennai. 4. Dr.B.S. Varadharajulu (deceased) 5. P.P.Vasantha ... defendants Civil Suit filed under Order VII Rule 1 of C.P.C. to pass decree and judgment against the defendants for declaration that the plaintifs alone are entitled to the remaining 1/4 amount payable under G.P.F. Acctount No.34834/Medi; For direftion to the defendants to pay to the plaintiffs the su m of Rs.79,278/- with further interest at 12 percent per annum on Rs.58,336/- from the date of plaint till the date of payment with costs. For Plaintiffs .. Mr.T. Karunakaran For Defendants .. D1 to D3 - No appearance D4 - Died D5 - Mr.V. Balasubramanian Tr.C.S.No.596 of 2005 1. B.S.Hemavathy ... Plaintiff versus 1. B.S. Varadarajulu (deceased) 2. P.P. Vasantha 3. B.S. Sujatha Visalakshi 4.B.S.Prasannakumar ... defendants Civil Suit filed under Order VII Rule 1 of C.P.C. to pass decree and judgment against the assets of the first defendant in the hands of the 2nd defendant for a sum of Rs.3,42,550/-; for interest at the rate of 12% on the4 principal amount Rs.1,50,000/- from the date of suit till the date of realisation with costs. For Plaintiff .. Mr.T. Karunakaran For Defendants .. D1 - Died D2 - Mr.V. Balasubramanian D3 - Tr.C.S.No.80 of 2016 1. B.S.Hemavathy 2. B.S.Sujatha Visalakshi 3. B.S.Prasanna Kumar ... Plaintiffs versus 1. Dr.B.S. Varadharajulu (deceased) 2. P.P.Vasantha ... defendants Civil Suit filed under Order IV Rule 1 of C.P.C.and Or.XXIV of O.S.Rules r/w Or.VII Rule 1 of C.P.C., to pass decree and judgment against the defendant for partition houses ground and premises No.17, Venkatesapuram Colonyh South Street, Ayanavaram, Madras 600023, and No.53 AF Block, Plot No.2199, 11th Main Road, Anna Nagar, Madras 600040, for rendition of accounts in respect of rental collections of the suit properties from 1.8.94 and to pay half share to the plaintiffs and for permanent injunction restraining the defendant or his men from interfering with the quite peaceful possession and enjoyment of the pnetire ground floor except one room and the front portion in the first floor of the Item I of the plaintiff schedule property and costs. For Plaintiffs .. Mr.T. Karunakaran For Defendants .. D1 - Died D2 - Mr.V. Balasubramanian ***** COMMON JUDGMENT
T.O.S.Nos.7 and 8 of 2005
1. The Original Petition Nos.58 and 59 of 2005 have been originally filed for grant of Letters of Administration based on the Wills dated 12.06.1995 and 08.06.1995 executed by one Dr.B.S.Varadarajulu in favour of Tmt.P.P. Vasantha Padmanaban were converted as T.O.S.Nos.7 and 8 of 2005 in view of the contest by the defendants.
Tr.C.S.No.350 of 20052. O.S.No.1134 of 1999 on the file of III Assistant City Civil Court, Chennai, was transferred to this Court and re-numbered as Tr.C.S.350 of 2005. This suit has been filed by the defendants in T.O.S.Nos.7 and 8 of 2005 against the Government as well as Dr.B.S.Varadarajulu (deceased) represented through L.R. Tmt.P.P. Vasantha Padmanabhan, for declaration of 1/4th amount from the G.P.F. Account of the deceased, and for direction to the plaintiff to pay a sum of Rs.79, 278/- with further interest @ 12% p.a. On Rs.58,336/- from the date of plaint till the date of payment.
Tr.C.S.No.596 of 20053. O.S.No.7255 of 1998 on the file of the VII Additional City Civil Court has been transferred to this Court and renumbered as Tr.C.S.No.596 of 2005, which was filed by the 1st defendant in T.O.S.Nos.7 and 8 of 2005 against the deceased Dr.B.S.Varadarajulu and plaintiff in T.O.S.No.7 and 8 of 2005 and her children to pass decree and judgment for Rs.3,42,550/- and interest at 12% on Rs.1,50,000/- from the date of suit till date of realisation with costs.
Tr.C.S.No.80 of 20164. C.S.No.1399 of 1995 on the file of this Court was transferred to the city Civil Court as per Act 19/2010, renumbered as O.S.5945 of 2015 and made over to V Additional City Civil Court, Chennai. The same was transferred back to this Court for trial along with T.O.S. Nos.7 and 8 of 2005, renumbered as Tr.C.S.80 of 2005. The suit has been filed by the Defendants in T.O.S.Nos.7 and 8 of 2005 for partition of the property of the deceased Dr.B.S.Varadarajulu at Ayanavaram in the hands of the plaintiff, rendition of the accounts and also for permanent injunction with costs.
6. Except T.O.S.Nos.7 and 8 of 2005, other suits evidence were recorded separately. Since the main dispute between the family members and the main issue with regard to the validity of the Will executed by Dr.B.S.Varadarajulu, it is necessary for this Court to dispose of all the suits in a common judgment. Since the Testator also examined as a witness in the suit filed for partition in Tr.C.S.No.80 of 2016, wherein he has also spoken about the Will and family affairs. Now, the testator Dr.B.S.Varadarajulu is no more.
7. The brief facts leading to filing of Tr.C.S.No.80 of 2016 are as follows:
7.(a) The 1st plaintiff is the wife of one Dr.Sundaramoorthy and other plaintiffs are daughter and son of Dr.Sundaramoorthy. The 1st Defendant Dr.B.S.Varadarajulu is father-in-law of the 1st plaintiff and grandfather of other plaintiffs. The 2nd Defendant was impleaded after the death of Dr.B.S.Varadarajulu. It is the case of the plaintiffs that the suit properties viz., (1) house and ground and premises No.17, Venkatesapuram Colony South Street, Ayanavaram, Madras 600023 and (2) House, ground and premises No.53, AF Block, Plot No.2199, 11th Main Road, Anna Nagar, Madras 600040, were purchased out of the family funds in the name of the 1st defendant. It is the further contention of the plaintiffs that the said properties were in the possession and enjoyment of the parties. The 1st defendant had maintained the properties. The other property at Salem was allotted to the share of one Seetharamaiar, father of the defendant, in which husband of the 1st plaintiff was having right by birth. The said property was later transferred in the name of 1st defendant's wife and thereafter, the same was settled in favour of the 2nd defendant. After the death of the 1st plaintiff's husband till the marriage of the 2nd defendant there was no dispute in the family. Thereafter, the 1st defendant started giving trouble to the plaintiffs. Therefore, this suit has been filed for claiming half share in the suit property. The 1st defendant, father-in-law of the 1st plaintiff denying the character of the property and submitted that the properties are self earned property and he is in possession of the property from the date of its purchase and prayed for dismissal of the suit. In the above suit the following issues are framed:
1.Whether the plaint schedule properties were purchased out of the family funds in the name of the defendant and improved with the money of the defendant that of the deceased Dr.B.V.Sundaramoorthy as alleged in para 4 of the plaint?
2.Whether it was agreed to treat the plaint schedule properties to be joint family properties as alleged by the plaintiff and whether plaintiffs are entitled to half share in the properties as contended by the plaintiffs?
3.Whether the plaint schedule properties are the self acquired properties as contended by him?
4.Whether the plaintiff schedule properties are the self acquired properties as contended by him?
5.Whether the plaintiffs are entitled to half of the rental collections from 1.8.1994?
6.Whether the plaintiffs are entitled to the permanent injunction as prayed for?
7.To what relief are the parties entitled?
8. The brief facts leading to filing of Tr.C.S.No.596 of 2005 are as follows:
8.(a) Tr.C.S.No.596 of 2005 filed for recovery of a sum of Rs.3,42,550/-. The main contention of the plaintiff is that the 1st defendant being the father-in-law borrowed a sum of Rs.1,00,000/- in the year 1982 and Rs.50,000/- in the year 1992, for improving the property situated at Anna Nagar and assured to repay the amount at 12% interest per annum. He has acknowledged the receipt of the above amount in the Will dated 11.2.1994. However, inspite of the assurance, the 1st defendant never repaid the principal amount nor paid the interest. So the plaintiff filed the suit. Denying the borrowal, it is the contention of the defendant that the plaintiff has no source to pay the amount and that the suit is barred by limitation. Hence, prayed for dismissal. The following issues were framed in the suit:
1.Whether the 1st defendant borrowed Rs.1,50,000/- during the years 1982 and 1992?
2.Whether the suit is barred by limitation?
3.Whether the plaintiff is entitled to recover the amount of Rs.3,42,550/- from the defendant with 12% interest per annum?
Tr.C.S.350 of 2005
9. This suit has been filed for declaration of 1/4th amount from the G.P.F. Account of the deceased, and for direction to the plaintiff to pay a sum of Rs.79, 278/- with further interest @ 12% p.a. on Rs.58,336/- from the date of plaint till the date of payment. It is the contention of the plaintiff that her husband died on 25.08.1994. He was contributing to the General Provident Fund. When they claimed the amount, the 2nd defendant stated that the 4th defendant is also entitled for 1/4th share. Challenging the same, they claimed the remaining 1/4th share. It is the contention of the Government that as per Rule 30(b) of G.P.F., when there is no nomination, the amount shall be payable in equal share. Accordingly they paid a sum of Rs.58, 336/- to the 4th defendant. The 4th defendant has taken a stand in the written statement that he had received the amount as per rules. Hence, prays for dismissal of the suit. The following issues are framed in the suit:
1.Whether the plaintiffs are entitled to declaration as prayed for?
2.Whether the plaintiffs are entitled to realise Rs.79,278/- from defendants as prayed for?
3.To what reliefs are the plaintiffs entitled to?
T.O.S.No.7 and 8 of 2005
10. T.O.S.No.7 of 2005 has been filed for Letters of Administration on the basis of the Will left by Dr. B.S. Varadarajulu dated 12.6.1995 bequeathing the properties to the plaintiff's life enjoyment and thereafter to her son and daughter. It is the contention of the plaintiff that the Will was written by the Testator in his own hand and the Will being an hologram Will, the same has been produced and proved by the deceased in Tr.C.S.No.1399 of 1995. T.O.S.No.8 of 2005 has been filed for grant of Letters of Administration on the basis of the Will dated 08.06.1995 bequeathing the life interest to the plaintiff, thereafter her children.
11. In both T.O.S.Nos.7 and 8 of 2005, it is the contention of the defendants that the deceased Dr.B.S.Varadarajulu had one son viz., Dr.Sundaramoorthy and daughter P.P. Vasantha and the defendants are the legal heirs of Dr. Sundaramoorthy who died on 25.08.1994. Till his death the Testator Dr.B.S.Varadarajulu was living with his son, daughter-in-law and their children. In the year 1989 he wrote a Will dated 5.07.1985. After the death of the first defendant husband in the year 1994, the plaintiff and her husband took the testator to Salem and obtained Will in respect of the valuable properties in the name of the plaintiff and her children. The testator was confined to the house at Manickem Pillai Street, Salem, where the plaintiff and husband were residing. The testator was not allowed to take any independent decision of his own. He was also kept in the house in confinement. He was not allowed to talk to his relatives and common friends and they were able to influence and kept him away from everyone including the defendants. The Wills are the result of the influence of the plaintiff and her husband. The Wills dated 08.06.1995 and 12.06.1995 are not true and genuine documents and which were not freely executed. The plaintiff and her husband have dictated and made Dr.B.S. Varadarajulu to write the Wills in his own handwriting. Dr.B.S.Varadarajulu was at the mercy of the plaintiff at the relevant point of time. He was not allowed to talk to anyone. He was kept under the control of the plaintiff and her husband. Absolutely there was no necessity for Dr.B.S.Varadarajulu to disinherit the grand-daughter and grand-son born to his son, when particularly Dr.B.V.Sundaramoorthy son of the Testator has contributed monies for the construction in the properties at Ayyanavaram and Anna Nagar. In fact, the subject matter of the Will are the joint family property and whereas false recitals made in the Will would show as if the properties are self acquired properties. The plaintiff and her husband have taken active participation in bringing the Will. The execution and attestation of the Wills are denied. The TOS may be dismissed with costs. Following issues are framed in these suits:
11.(a) Issues framed in T.O.S.7 of 2005
1.Whether the Will dated 12.06.1995 is true and genuine?
2.Whether the plaintiff is entitled to Letters of Administration as prayed for?
3.To what relief are the parties entitled to?
11.(b) Issues framed in T.O.S.No.8 of 2005:
1. Whether the Will dated 12.06.1995is true and genuine?
2. Whether the plaintiff is entitled to Letters of Administration as prayed for?
3. To what relief are the parties entitled to?
12. The learned counsel for the plaintiff in T.O.S.Nos.7 and 8 of 2005 submitted that the subject matter of the Wills are purchased by Dr.B.S. Varadarajulu. He was doctor by profession. He retired as Deputy Director of Medical Services in the year 1993. Prior to that the properties were purchased by himself. Though he lived with his only son Dr.Sundaramoorthy and family, his only son met with a road accident in the year 1994 and died. Thereafter 1st defendant has shown utmost disrespect to his father in law which forced him to leave the house of the defendants and he had to live separately in Salem. In the meanwhile, she has also filed a suit against the said Dr.B.S.Varadarajulu in the year 1995 claiming partition on the ground that the properties are joint family properties. Written statement filed by the defendants and the evidence recorded in the suit clinchingly show that due to misunderstanding he left the house and he had to write a Will. Prior legal notice also goes to show that the testator has taken extreme steps to write the Wills because, due to the dispute arose with the 1st defendant. The testator himself admitted in his evidence about the execution of the Wills in favour of the plaintiff and her daughters. One of the attesting witnesses in two Wills is also examined. The Will is registered one and the Will was hand written by Dr.B.S. Varadarajulu himself. Hence, submitted that the Wills have been legally proved. The reason for disinheriting the son and children was the dispute raised by the first defendant. Therefore, mere disinheriting them is not a ground to disbelieve the Wills. Hence, submitted that the testator admitted the execution of the Will, the Will also proved in the manner known to law and the other materials would show that the plaintiff in both the T.O.S. Nos.7 and 8 of 2005 are entitled for Letters of Administration.
13. It is also the contention of the learned counsel for the plaintiff that as far as the suit filed for partition absolutely there is no material to show that the properties are joint family properties. The properties were purchased out of the earnings of Dr.B.S. Varadarajulu while he was in service and he improved the properties. Therefore, the suit for partition is not maintainable.
14. As far as the suit filed in Tr.C.S.596 of 2005 is concerned, it is pleaded that the deceased Dr.B.S.Varadarajulu stated to have received 1/4th share of GPF amount of Dr.B.V.Sundaramoorthy that has to be paid to the plaintiff who is the legal heir of deceased Dr.B.V.Sundaramoorthy. It is the contention of the learned counsel for the defendant that as the person who had received the 1/4th amount also died, the suit has become infructuous.
15. It is the further contention of the learned counsel that as far as the suit filed for recovery of amount said to have advanced in the years 1982 and 1992 to the father-in-law by the plaintiff/daughter-in-law and her husband son is concerned, also barred by limitation. Hence it is submitted that once the Will is proved, the suit for partition is not maintainable and other suits become infructuous. Hence, prayed for decreeing the suit in T.O.S.Nos.7 and 8 of 2005 in favour of the plaintiff.
16. The learned counsel appearing for the defendants in T.O.S.Nos.7 and 8 for 2005 and plaintiff in Tr.C.S.80 of 2016 and other connected suits would contend that Dr.B.S. Varadarajulu has all along happily lived with his only son Dr.Sundaramoorthy and his wife and children at Chennai. Further Dr.Sundaramoorthy the only son of Dr.B.S.Varadarajulu met with a road accident in the year 1994. Even after the death of Dr.Sundaramoorthy, Dr.B.S.Varadarajulu was living with the Defendant till the marriage of the plaintiff. Thereafter, in view of some misunderstanding between the father-in-law and daughter-in-law, there were exchange of legal notices between them, which clearly shows that Dr.B.S. Varadarajulu in fact abused the daughter-in-law and the same was objected by the defendant. Hence, he left the house and the plaintiff and her husband taken him under their control and retained him at Salem and influenced Dr.B.S.Varadarajulu and managed to get the Wills executed in her favour. It is the further contention of the learned counsel that prior to the execution of the Wills, 16 days before the testator had executed a Will which clearly indicates that Dr.B.S. Varadarajulu has equally bequeathed the property not only to the plaintiff''s daughters but also the children of the defendant. There was no necessity for him to take any deviation within 16 days particularly he was under the control of the plaintiff and her husband. It is the further contention of the learned counsel that the documents produced by Dr.B.S. Varadarajulu, which were marked in Tr.C.S.No.80 of 2016, proved the fact that the properties are all along treated as joint family properties. Though the properties were purchased in the name of Dr.B.S. Varadarajulu, his son Dr.Sundaramoorthy, who was also doctor by profession, contributed for construction which were made after 1980s that too when Dr.B.S.Varadarajulu retired from his service. Only when the dispute arose between the daughter-in-law and father-in-law, the same has been taken advantage by the plaintiff, the only daughter of Dr.B.S.Varadarajulu to get the Wills executed in their favour.
17. It is the further contention of the learned counsel that one of the attesting witnesses in both the Will is son-in-law of Mr.B.S.Varadarajulu, viz., husband of the plaintiff. P.W.2's evidence also shows that the plaintiff also actively took part in preparation of the Will. All these facts clearly indicate that Dr.B.S. Varadarajulu, who was aged about 78 years at the relevant point of time, was influenced and the Will came to be executed against his free will and volition. The evidence of the attesting witness would clearly show that there are suspicious circumstances attached to the Will. The Will is shrouded with serious suspicion, which cannot be believed. Therefore, submits, the defendants are entitled to equal share in the suit properties.
18. In the light of the above submissions, since there are 5 suits between the parties, to dispose of all the suits, this Court is of the view that though there are many issues framed in each suit, this Court is inclined to recast the issues for all the 5 suits so that all the suits can be disposed altogether.
1. Whether the Will dated 08.06.1995 is true and valid?
2. Whether the Will dated 08.06.1995 is true and valid?
3. Whether the plaintiffs in T.O.S.Nos.7 and 8 of 2005 are entitled to Letters of Administration as prayed for?
4. Whether the suit properties in the Wills are the joint family properties?
5. Whether the plaintiffs in Tr.C.S.80 of 2016 are entitled to partition?
6. Whether the plaintiffs in Tr.C.S.No.596 of 2005 are entitled to recovery of money Rs.3,42,000/- (Rs.1,50,000/- principal plus interest) as prayed for?
7. Whether the plaintiffs in Tr.C.S.No.350 of 2005 are entitled to remaining 1/4th amount payable under G.P.F. Account of the deceased/1st defendant?
Issue Nos.1, 2 and 319. The relationship between the parties are not disputed. From the evidence adduced by the parties in both sides, the following facts are not disputed. Dr.B.S. Varadarajulu, the Testator was medical officer by profession was in Government Service and he purchased the suit properties in his name by way of allotment by Tamil Nadu Housing board in the year 1967. He retired from the service in the year 1973. Thereafter, there is no evidence to show that he had continued his practice. The said Dr.B.S.Varadarajulu has one son viz., Dr.Sundaramoorthy and one daughter viz., P.P. Vasantha. Dr.Sundaramoorthy was also a doctor by profession and he was working in Nigeria between 1982 and 1994, thereafter he joined in the Government Service and worked in the Tanjore Medical College till 1994. In the year 1994 he met with an road accident and succumbed to injuries. Till the death of Dr.Sundararmoorthy, Dr.B.S. Varadarajulu was residing with him along with Dr.Sundaramoorthy's family i.e., wife and children. Even after the death of Dr.Sundaramoorthy, the testator Dr.B.S. Varajdarajulu lived in the same house for a year. From the entire evidence adduced by both sides, it is also not disputed that the property situated at Salem equally given to the daughters and son and their children previously by way of settlement. Now, the dispute is only with regard to the house properties situated in Chennai. In this regard, Dr.B.S. Varadarajulu also examined in C.S.No.80 of 1995 as D.W.1. During his evidence he has deposed that the suit properties were not joint family properties.
20. Further, he has admitted in his cross examination to the effect that since his daughter-in-law compelled him to settle the properties exclusively for her, the dispute started and he left the house and went to Salem. Further, the Wills Ex.P1 and Ex.P.2 dated 12.06.1995 and 08.06.1995 were shown to Dr.B.S. Varadarajulu during his cross examination, and he has admitted that he has executed both the Wills. Except showing the Wills, the circumstances and other events under which the Wills came to be executed by him has not been elicited from him by the counsel appeared for Dr. Varadarajulu in the partition suit. Now the learned counsel appearing for the plaintiff would contend that the executor himself admitted the Wills there is no need for further proof. Of course, any admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, as per Section 70 of the Indian Evidence Act, whether such admission of the executor itself suffice to accept the Will, answer is no. It is the duty of the propounder of the Will to show that the Wills were executed out of free will and own volition without any interference and the Wills are not result of any undue influence etc., P.W.1 daughter in her evidence stated that two wills were executed by her father in her favour. Ex.P.1 Will dated 12.06.1995 in respect of the properties situated at Ayanavaram, Chennai. The Will is holographic Will stated to have been executed on 12.06.1995 attested by one Mr.P.R. Padmanabhan and one Mr.S.Velu. The Will was executed at Sub-Registrar of Suramangalam, Salem. Similarly, Ex.P.2 Will dated 08.06.1995 also holographic Will and one of the attesting witness is Mr.P.R.Padmanabhan who is the husband of the plaintiff and another attesting witness is one Mr.A. Kaliappan. This Will also executed at the Sub-Registrar of Suramangalam, Salem. Both the Wills though said to have been executed at Salem on two different dates, it is to be noted that in both the Wills one of the attesting witnesses is Padmanabhan, who is the husband of the plaintiff herein. Whereas in both the Wills another attesting witnesses were different persons. Attesting witnesses were not accompanied to the Registrar Office during execution. As per the Will dated 08.06.1995 the property i.e., Commercial Complex building was bequeathed to the plaintiff for lifetime thereafter to her daughters. Similarly, Will dated 12.06.1995 executed in favour of the plaintiff to her lifetime vested remainders to her daughters.
21. The recital of the Will itself clearly shows that the age of the testator was 78 years and he has swelling in his hands and legs; he was not able to walk even a short distance and his health condition is very bad; therefore he wrote the Will. The recitals itself would clearly show that the testator was 78 years of age at the time of execution of the Wills and not keeping good health and not able to move on his own. Ex.P.1 in the last page the word **vd; kfs; tre;jht[f;F** was inserted in different handwriting. It can be seen by bare eyes. Similarly, in Ex.P.2 Will second page last four lines are added in different ink, giving her daughter/plaintiff right to live or lease for rent etc., The continuity of the handwriting of the above four lines when read with 3rd page of the Will, this court has no hesitation to come to the conclusion that before signature 4 lines were added. Be that as it may. Therefore, mere registration itself is not sufficient to prove the Will. If there are any suspicious circumstances surrounding the execution of the Will, the same must be removed from the mind of the Court by cogent and satisfactory evidence.
22. P.W.1 in her evidence stated that the Will was executed in the presence of attesting witnesses while his father was in sound and disposal state of mind. This Court also cannot ignore the fact that there is a special reference in the two Wills about the cancellation of the Will of the year 1995 executed by the same Dr.B.S.Varadarajulu. But there is no reference with regard to the cancellation of the Will executed by Dr.B.S. Varadarajulu, which is 16 days prior to the Ex.P.2 Will. Exs.C.2 and C.3 were summoned from the Registration Department. Under Ex.C.2 dated 17.5.1995, he bequeathed the property to his all the grandchildren. In Ex.C.3 Will also executed on 26.5.2018, the propounder bequeathed the properties to all his grandchildren. The above Wills were executed on 17.05.1995 and 26.05.1995 respectively. The factum of executing the Wills is not even found place in the Will dated 12.06.1995 and 08.06.1995, whereas he has gone to the extent of revoking the Wills executed in the year 1995. When the earlier Will was not revoked, it does not mean that the subsequent Will will prevail over it. This Court assessed these facts only for proper appreciation of evidence to assess the conduct of the parties in this case. On 17.05.1995 he made a Will bequeathing the properties to all the grandchildren. Within 15 days when he went to Salem after the dispute started with his daughter in law, he wrote other wills excluding the grandchildren born through his son. There is no reason whatsoever found in the Will for excluding grand children who are all along living with him. They have been left in the subsequent Wills after some dispute with her daughter in law. The evidence of P.W.1 daughter-in-law examined in C.S.No.80 of 1996 clearly shows that even after the the death of her husband in the year 1994, the father in law was very much living with them for one year. The legal notice exchanged between the parties exhibited in C.S.No.80 of 2016 indicate that the dispute started first time on 27.08.1995. In that notice, the father -in-law made serious accusation against the daughter-in-law. Subsequently, he made apology for such accusation in reply notice. The above fact clearly indicates that after serious dispute arose between them after executing Ex.C.3 Will dated 26.5.1995, he went to Salem, where the plaintiff/daughter and her husband were living. Now in the above back ground, the evidence of D.W.1 propounder of the Will in the entirety seen. In the testamentary proceedings in her cross examination she has also admitted that her father was living with the defendants after death of his only son Sundaramoorthy. It is the specific admission of P.W.1 in the cross examination that she came to know about Ex.P.1 and Ex.P.2 Wills only after her father informed her. She personally did not know about execution of the Will during the relevant point of time. She has also admitted that she do not know the date of execution and registration of the Will that are one and the same and she has also stated that only during the court proceedings she came to know the custody of the Will was with her husband. She has also categorically admitted that in Ex.P.2 Will dated 08.06.1995 one of the attesting witness is one Narayanan who is not known to her. Similarly she has also not known the identifying witness one Mr.Velu. She did not ascertain why the attesting witness and identifying witnesses are different. In both the Wills her husband was one of the attesting witnesses and also identifying witness. It is the further evidence of P.W.1 that at the time of execution of Ex.P.1 and Ex.P.2 her father was residing at Chennai with the defendants. It is curious to note that Ex.P.1 and Ex.P.2 and Ex.C.3 the plaintiff's husband Mr.Padmanabhan was one of the attesting witnesses. Having known the execution of the above documents just prior to two weeks of execution of Ex.P.1 and Ex.P.2, having taken active participation in the execution and attestation of the previous Will, they have not been stated in the subsequent Will for revoking the same. These facts create serious doubt about the execution of the Will by Dr.B.S. Varadarajulu in a sound state of mind and out of free will etc.
24. P.W.1 claims that she was unaware of the execution of the Will and attesting witness in the Will. In the above back ground, the evidence of attesting witness when carefully perused, P.W.2 claims to be one of the attesting witnesses in Ex.P.1 Will. According to him, he knows Dr.B.S. Varadarajulu. Since he is doing business of selling sand, bricks etc and Dr.B.S.Varadarajulu doing the work of building construction in the above business he came to know the said Dr.B.S. Varadarajulu. On the date of Will i.e., on 08.06.1995 the Will was executed in his presence by Mr.B.S. Varadarajulu. Thereafter the Will was registered . He did not go the registered office. It is to be noted that the entire cross examination clearly shows that at the time of alleged Will, the plaintiff Mrs.Vasantha and son-in-law were very much present in the house. It is the further evidence of P.W.2 that prior to the date of Will Dr.B.S. Varadarajulu was doing construction works at Salem. It is to be noted that Dr.B.S. Varadarajulu was all along lived with his son and daughter-in-law. Only during 1995, he came to Salem only after some dispute with his daughter in law. Therefore, evidence of P.W.2 that Dr.B.S.Varadarajulu doing construction work for two to three years at Salem is highly doubtful. His evidence would also falsify the evidence of P.W.1 that she was unaware of the execution of the Will and that she came to know about the Will through her husband after some time. It is curious to note that Dr.B.S. Varadarajulu has moved to Salem after the dispute with her daughter-in-law in the year 1995. Therefore, P.W.2, getting acquaintance with Dr.B.S. Varadarajulu with business transaction for more then three years is highly unbelievable, which creates serious doubt about his version.
25. It is further to be noted that P.W.3 one of the attesting witnesses in the Will dated 08.06.1995. He claims to be the watchman in the house where Mr.B.S. Varadarajulu was living. According to P.W.3 he was working as watchman in the house of Dr.B.S. Varadarajulu for about 7 or 8 months. He also knows his daughter and her husband. They used to visit the house for the purpose of bringing food for Dr.B.S.Varadarajulu. At the time of execution of the Will Dr.B.S.Varadarajulu daughter/plaintiff and her husband were very much present. His evidence further goes to show that he was standing outside the house while Dr.B.S. Varadarajulu was preparing the Will. The daughter and the -in-law were accompanying him and he was standing nearby door. After attestation he did not go to the Registrar office. It is curious to note that P.w.3 claims to be watchman stated to have been attesting witness of Ex.P.2 Will. In his evidence he has also stated that he never seen any person known as Kaliappan, attesting witness of Ex.P.1 Will, visited the house of the testator on 12.06.1995. Therefore, P.W.2 going to the house of Dr.B.S. Varadarajulu on 12.06.1995 to attest the document is highly doubtful. It is further curious to note that P.W.3 claims to be the watchman in the house of Dr.B.S. Varadarajuly, P.W.1 in her evidence categorically stated that P.W.2 and P.W.3 are totally unknown persons to her. She has never seen them. This evidence creates serious doubt about the attesting witnesses present at the time of execution of Will. At any event the evidence of P.W.2 and P.W.3 would also show that the plaintiff and her husband was very much present; they have actively participated in the execution of documents. It is curious to note when P.W.2 and P.W.3 claimed to be the attesting witnesses the Will was stated to have been registered on the same day, they were not taken to the registered office for identifying Dr.B.S.Varadarajulu. This also one of the suspicious circumstances to doubt about the genuineness of the Will. No doubt Dr.B.S. Varadarajan himself admitted in his evidence in C.S.No.80 of 2016, it is to be noted such admission can be used only against him with regard to the execution alone. Dr.B.S.Varadarajulu father-in-law after some dispute with the daughter-in-law left the house and went to Salem during 1995 May where her daughter and son-in-law there. The recital in the Will shows that he was old and not able to walk freely without others support. His health condition is also not well. He has made some accusation against her daughter in law in view of that some dispute raised by her. In such situation he could not have exercised his free Will and he could not have taken a rational decision to write a Will. Having distributed the property equally to all the grand children during May 1995, within two weeks, writing another Will in favour of the plaintiffs, there must be some reason. But there was no reason whatsoever given in the Will or in his evidence. Therefore, excluding grand children born through his son, without proper reasons also create serious doubt about the execution of the Will. Further the fact remains that one of the attesting witnesses, plaintiff''s husband is also aware of the execution of the earlier Wills Ex.C2 and Ex.C3. He conveniently suppressed the above fact in Ex.P.1 and Ex.P.2. These circumstances really give inference that subsequent Wills were obtained for the purpose of acquiring entire property in the name of plaintiff. The evidence of the attesting witness shows that P.W.1 also actively participated at the time of execution of the Will. But P.W.1 stated in her evidence that very execution itself came to be known to her only after few days, this cannot be true at all. It is further to be noted that though properties were purchased in the name of Dr.B.S. Varadarajulu in the year 1967 as per own admission of P.W.1 in this case, the construction were put up subsequently in the year 1980. The documents marked in Ex.P.4, Ex.P.6 and Ex.P.7 in C.S.No.80 of 2016 also not disputed by Dr.B.S.Varadarajulu. The same clearly indicate that some contribution was made by the son while he was in foreign country, towards the construction of the proeprty, that apart Dr.B.S. Varadarajulu himself declared the property as joint family property while executing lease agreements in Ex.P.6 and Ex.P.7. That being the position and all along living with the grandchildren and son and his evidence recorded in Tr.C.S.80 of 2016 also show that he had no issues with the son and grand children. But suddenly disinheriting grandchildren within 2 weeks creates serious doubt about the Will.
27. Dr.B.S. Varadarajulu was aged about 78 years and his own admission shows that his health condition is very weak and he is unable to walk besides he is also strongly affected by the dispute raised by the daughter in law and taken shelter in Salem where his daughter and Son-in-law residing. When a person of such age shaken by his health and also the sudden dispute with the daughter in law after the death of his son and he was totally dependent on his daughter at Salem. From that situation it can be easily visualise that the daughter was in a position to dominate the Will of father and she utilised the situation surrounded with Dr.B.S. Varadarajulu. Dr.B.S. Varadarajan, not only disturbed mentally due to serious dispute between himself and her daughter in law but also affected by such age. At that time, the situation was utilised by daughter, who was all along resided in Salem with her husband. She was in a position to dominate the Will of his father. The participation of the plaintiff and son-in-law and obtaining attestation by the persons said to be the broker of selling sand, brick, etc., and watchman clearly indicate that only to get the unfair advantage both the Wills came to be executed. Therefore, merely because the Will was written in hand by the Dr.B.S. Varadarajulu, it cannot be stated that it s out of his own volition.
28. As already stated, having himself declared as joint family property in writing in some of the documents ie., in Ex.P.6 and Ex.P.7 and sudden change that too within two weeks after bequeathing the properties to the grand children, clearly indicate that he was mentally disturbed due to the serious dispute raised by daughter in law about his conduct. Therefore, when the plaintiff took advantage of the situation, she was in fact in dominant position when the aged father was mentally disturbed due to various problems in the family. Her evidence clearly indicate that she was not in talking terms with the sister-in-law and family. Further her evidence in the cross examination show as if Ex.P.1 and Ex.P.2 Wills were executed while her father was living with the defendant viz., daughter-in-law and family is also falsified by the evidence of P.W.2 and P.W.3. P.W.2 claims that Dr.B.S. Varadarajulu was residing three years in Salem, P.W.3 would state that he was working as watchman in Dr.B.S. Varadarajulu house for more than 7 to 8 months. All these facts create serious doubt about the execution of the Will out of his own volition. The facts and circumstances lead to that Dr.B.S. Varadarajulu was mentally disturbed and has not executed Will freely. Merely because the Will appears to have been written in his own handwriting, the authenticity cannot be given any credence, considering the entire circumstances.
29. In this regard, it is useful to refer the Judgment of Honourable Supreme Court, in H.Venkatachala Iyengar vs.B.N.Thimmajamma & Others [1959 AIR 443] in which it is held as follows:
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson (1) " where a will is charged with suspicion, the rules enjoin a reasonable skepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth ". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.
30. Accordingly this Court, considering the totality of the circumstances hold that the propounder has not removed the suspicious circumstances. Only when the evidence proves the fact that the testator executed the Will in free and sound state of mind, he was in a position to take rational decision, then the Will can be relied upon. In this case, Ex.P.1 and Ex.P.2 Wills shrouded with serious doubts and the propounder has not removed the following legitimate doubts from the mind of the Court:
1.Reason for excluding grandchildren born through his son despite the fact that the Testator all along lived with them.
2.The reason for not mentioning of the earlier Wills executed 15 days prior to execution of subsequent Wills are also one of the suspicious circumstances and the active participation of the plaintiff and her husband in execution of the Wills.
3.The attesting witnesses claim to be a watchman and broker; their evidence also create serious doubt about the execution of the Wills.
4.Different identifying witness in the Registrar Office.
5.The plaintiff in T.O.S.Nos.7 and 8 of 2005 was in dominant position and she took advantage of the situation of his father who was mentally disturbed and physically weak due to his old age at the time of execution of the Will
6.the properties are all along treated as joint family properties by the Testator himself.
In view of the above the Court comes to the conclusion that the Wills dated 12.06.1995 and 08.06.1995 executed by the Testator is not genuine and true. Accordingly, the plaintiff in T.O.S.Nos.7 and 8 of 2005 is not entitled for Letters of Administration. The Issue Nos.1, 2 and 3 are answered accordingly.
Issue Nos.4 and 531. The Plaintiff has filed suit in Tr.C.S.No.80 of 2016 for partition on the ground that the suit properties are joint family properties and the construction was made on the basis of the contribution made by her husband. The testator Dr.B.S.Varadarajulu examined as D.W.1 in the suit in Tr.C.S.No.80 of 2016 (re numbered from C.S.1399 of 1995) Ex.P.1 filed in the above suit shows that in 1967 two grounds of vacant sites were allotted to Dr.B.S.Varadarajulu by the Housing Board. At the relevant point of time, the Testator was doctor by profession. Ex.P.2 Will stated to have been executed by Dr.B.S. Varadarajulu dated 05.07.1989. Though the above Will stated to have been executed by Dr.B.S. Varadarajulu the same has not been proved in the manner known to law. In fact this document has not even been shown to the executant while he was examined in the above suit. Therefore, Ex.P.2 cannot be given much importance. Whereas Ex.P.3 letter written by the Dr.B.S. Varadarajulu is admitted by himself during the cross-examination. The letter indicates that his son-in-law has developed relationship with some other woman which led him to leave the place of daughter and go to Chennai. Ex.P.5 letter said to have been written by Dr.Sundaramurthy to his father in law, wherein he made reference of his letter dated 21.10.1992 and also made reference that he has so far paid Rs.62,000/- for the construction work of Anna Nagar house. Ex.P.6 is the rental agreement executed jointly by Dr.B.S. Varadarajulu and Hemavathi viz., wife of Dr.Sundaramoorthy, wherein specifically a reference has been made as the property belonged to both of them. Ex.P.7 is also one such document executed on 15.3.1993 in which both Dr.B.S.Varadarajulu and daughter-in-law claims to be joint owners of the property. Ex.P.7 was also admitted by Dr.B.S. Varadarajulu. It is also the evidence of Dr.B.S.Varadarajulu that he was residing along with his son and his family, residing in the Anna Nagar property. After the death of his only son Dr.Sundaramoorthy in the year 1994 he was residing with his daughter-in-law and her children.
32. Dr.B.S. Varadarajulu in his Chief examination has admitted that the dispute arose between him and her daughter in law/1st plaintiff, only after the death of his son. His daughter-in-law i.e., plaintiff No.1 was compelling him to gift by a settlement deed both the Anna Nagar and Ayanavaram properties to her he flatly refused. So the dispute arose between them. Even in the cross examination it is asserted that since the daughter-in-law was compelling him to give 2 plots of house property for which he refused. That is also one of the reasons for dispute. Ex.P.4 was also made by Dr.Sundaramoorthy. It is also admitted by Dr.B.S. Varadarajulu that Ex.P.5 is hand written by his son. During the cross examination he has admitted that his son made some contribution towards the construction of the house. The handwriting of the son is also admitted by Dr.B.S. Varadarajulu in the cross examination. His entire evidence also indicates that there is no dispute between the son and himself at all. His son Dr.Sundaramoorthy died in a road accident. It is also admitted by the parties even after the death of Dr.Sundaramoorthy also Dr.B.S.Varadarajulu living with the daughter-in-law and children. Thereafter only dispute started between them.
33. Ex.P.6 recital goes to show that in front side of the newly constructed house, shops were given on rent and Ex.P.7. These facts clearly show that the construction was continued and improvement was made in the property even in the year 1992. Thereafter, for the first time a legal notice was issued by Dr.B.S. Varadarajulu on 27.8.95 against the daughter-in-law raising certain bad conduct which was replied by her. Therefore, there was exchange of notices. Ex.P.8 is the reply sent by Dr.B.S. Varadarajulu to the daughter-in-law wherein it is mentioned that "Whatever has been mentioned, has been done only with a view to advise your client and not with any intention of defaming her or humiliating her. It is for her to take the advice in a proper spirit. Anyway, my client feels sorry if he has offended her feelings." That was the reply given by the 1st defendant. Though there were earlier correspondences, the fact remains that the serious accusation made by Dr.B.S.Varadarajulu against the daughter-in-law, thereafter he felt sorry for the accusation made against her. Again another reply was also sent by the daughter-in-law by 09.10.1995 which is marked as Ex.P.9, wherein she has also requested for amicable settlement if any. These correspondences clearly indicate that only after the death of the only son, the trouble started. The father-in-law made some accusation against daughter-in-law. Thereafter, he felt sorry for such hard words used against daughter-in-law in his reply notice. Though the properties were allotted to the first defendant by Housing Board in the year 1967 as per Ex.P.1, Ex.P.4 letter shows that his only son sent money from foreign country who is doctor by profession. In Ex.P.5 written in the year 1982 shows that the construction was going to finish in the year 1982 and he was paying a sum of Rs.62,000/- for the construction work. Exs.P.6 and P.7 rental agreements executed by Dr.B.S.Varadarajulu and her daughter-in-law, clearly indicate that the property was treated as joint family property, though purchased by Dr.B.S. Varadarajulu in the year 1967. The evidence of D.W.1 also clearly shows that Dr.Sundaramoorthy for some time was working in Nigeria between 1982 and 1994. Thereafter he was working in Tanjore Medical College. It is also the evidence of D.W.1 that even after the death of her husband, father-in-law lived in the same house.
34. Though there cannot be any presumption that the family itself is joint family, which forms basis of a joint family property, the natural events in the family and the conduct of the parties assumes significance as to how the property was treated all along. Though Dr.B.S. Varadarajulu purchased the property in his own name, it is evident that the construction was put up after his retirement from 1982 to 1984. He was retired from the service during the year 1973 and the evidence of P.W.1 shows that he did not do any any private practice. By that time his only son has become major Ex.P.5 shows that he had also sent some amount for construction of house and in Ex.P.6 and Ex.P.7 rental agreements, the 1st defendant Dr.B.S. Varadarajulu himself declared that it is the joint family property of himself and his daughter-in-law. These facts show that though the property was purchased by Dr.B.S. Varadarajulu, his only son made contribution for the construction of the building. The conduct of the parties and natural events in the family clearly indicates that the 1st defendant was all along living with his only son and he himself declared the property as joint family property through Exs.P.6 and P.7. This court is necessarily to hold that the first defendant himself treated the property as joint family properties. There is no bar under the Hindu Law for any person from declaring his self acquired properties as joint family properties. Taking into consideration the conduct of the owner of the property, treating his property as joint family property and the further conduct that he was all along living with his son and let out the property for rent, this Court has necessarily to hold that though the property was purchased in the name of Dr.B.S. Varadarajan, he treated the property as joint family property and the subsequent events and the letter of his son Ex.P.4 to the effect that he contributed money for construction of the house was not disputed by him coupled with the fact of his own declaration as the properties are joint family properties under Exs.P.6 and P.7, this Court has no other option except to hold that the properties all along treated as joint family property. In view of the same, for the fact that the Wills are also disbelieved by this Court, the plaintiff in Tr.C.S.No.80 of 2016 is entitled for partition. The Issue Nos.4 and 5 are answered accordingly.
Issue No.6
35. The suit in Tr.C.S.No.596 of 2005 was filed for recovery of money which was stated to have been borrowed by the first defendant in the year 1982 and 1992 with interest. The 1st defendant had already died. Ex.P.1 and Ex.P.2 Wills stated to have been executed by the deceased, wherein he had made a reference about Rs.1,50,000/- stated to have been paid by the plaintiff. The Wills are not proved in the manner known to law. Apart from that there is no evidence to show that the amount was paid. The suit has been filed in the year 1998. After the period of three years from the date of borrowal, it is barred by limitation. Considering the above, this Court comes to the conclusion that the plaintiff is not entitled for any recovery of money. Issue No.6 is answered accordingly.
Issue No.7
36. The plaintiffs in Tr.C.S.No.350 of 2005 seeking for direction to the 1st defendant to pay the 1/4th amount under the G.P.F Account of deceased Dr.Sundaramoorthy. The above amount was received by the 1st defendant in his life time. Since he died no more adjudication is required. In view of the same the suit in Tr.C.S.No.350 fo 2005 is closed as infructuous. Accordingly no finding is necessary in this issue.
37. In the result
1.T.O.S.Nos.7 and 8 of 2005 are dismissed.
2.Preliminary decree is passed in Tr.C.S.No.80 of 2016. Plaintiffs in Tr.C.S.No.80 of 2016 are entitled to half share in the suit property.
3.Tr.C.S.No.596 of 2005 is dismissed.
4.Tr.C.S.No.350 of 2005 is dismissed as infructuous.
5.Considering the relationship between the parties, there shall be no order as to costs. 23.08.2018 Index:Yes/No Internet:Yes/No N. SATHISH KUMAR, J.
ggs.
Common Judgment in:
T.O.S.No.7 and 8 of 2005, Tr.C.S.Nos.350 and 596 of 2005 and Tr.C.S.No.80 of 2016 23.08.2018