Madras High Court
K.Chellappan vs Mrs.Pancharani on 20 December, 2019
Equivalent citations: AIRONLINE 2019 MAD 1396, (2020) 2 MAD LJ 224
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
A.S.No.174 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20-12-2019
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
A.S.No.174 of 2017
And
C.M.P.No.7653 of 2017
K.Chellappan .. Appellant/Defendant
vs.
1.Mrs.Pancharani
2.Mrs.M.Kasthuri
3.Mrs.S.Lakshmi
4.Mrs.S.Selvi
5.Mrs.S.Sulochana .. Respondents/Defendants
Appeal Suit is preferred under Section 96 of the Code of Civil
Procedure against the order and decree dated 07.11.2016 made in
O.S.No.13 of 2014 on the file of the learned District Judge, District
Court No.II, Kancheepuram.
For Appellant : Mr.R.Bharath Kumar
For Respondent : Mr.R.Sreedhar
JUDGMENT
The judgment and decree dated 07.11.2016 passed by the learned District Judge, District Court No.II, Kancheepuram in Original 1/20 http://www.judis.nic.in A.S.No.174 of 2017 Suit No.13 of 2014, is under challenge in the present appeal suit.
2. The appellant in the appeal suit is the defendant in the suit and the respondents in the appeal suit are the plaintiffs in the suit.
3. For the sake of convenience, the ranking of the parties in the appeal suit would be referred to as per their ranks in the Trial Court.
4. The original suit was instituted by the appellant and the relationship between the parties to the original suit are not disputed. The appellant as well as the respondents are brother and sisters and the suit is instituted for partition of the suit schedule properties.
5. The brief facts set out in the plaint before the Trial Court are that the plaintiffs and the defendant are son and daughters of one Kannan and Dhanabakkiam. The father Kannan died intestate on 23.08.1996 and the mother also died intestate on 15.11.2013, leaving behind the plaintiffs and the defendant as their legal heirs. The father owned the property to an extent of 0.40 cents in Survey No.597/2 at Gerugambakkam Village, Sriperumbudur Taluk. During the lifetime of 2/20 http://www.judis.nic.in A.S.No.174 of 2017 their father, he gave paddy and rice to the plaintiffs. After the death of the father, the land was cultivated by the plaintiffs. The plaintiffs and the defendant are in joint possession. After the death of the mother, the property was kept without cultivation, since the nearby areas are well developed. The entire property is undivided family property and hence all have got equal rights in the suit schedule property. It is stated that the property is not divided till date. The plaintiffs requested several times to the defendant to divide the property by mets and bounds. But the defendant failed to give any share to the plaintiffs. Now the defendant trying to alienate the property to the third parties. Therefore, the plaintiffs instituted the suit for partition.
6. The defendant before the Trial Court in his written statement disputed the contentions in the plaint by stating that the property to an extent of 0.39 cents in Gerugambakkam village was originally owned by the grandfather of the defendants Mr.Munusamy, S/o.Munian @ Pithan. He purchased the property from Dhanammal on 29.11.1937 under a registered Sale Deed. He had 3 sons, namely, Kannan, Kuppan and Varadhan. After demise of Munian, his above 3 sons partitioned the above land and got 0.13 cents equally. Accordingly, the defendant's father got 0.13 cents. 3/20 http://www.judis.nic.in A.S.No.174 of 2017
7. The defendant further said that the family members of the plaintiffs are agricultural labourers and daily wages. Hence to meet out the family expenses, the abovesaid Kuppan and Varadhan sold their total shares of 0.26 cents to the father of the defendant. At the time, the defendant was a Government Employee and he paid the entire sale consideration from his own savings and completed the Sale Deed on 27.11.1972 in favour of his father to dignify him. The defendant is the only son to look after his family, since his father was a drunken and sick man. He had no means to purchase the said land. It is contended that the plaintiffs got married and therefore, they are not entitled for the suit schedule property.
8. The defendant contended that after marriage, they have no share in the properties as they were ousted from the property more than the statutory period. This apart, it is contended that the defendant married at the age of 33 after settling the family expenses. The parents also lived with him. The father had executed an unregistered Will dated 28.07.1995 for the extent of 39 cents out of which 26 cents were purchased by the defendant himself. He was left a message in his Will to get consent and approval of his wife Dhanabakkiam to execute his Will. Therefore, to honour her husband, 4/20 http://www.judis.nic.in A.S.No.174 of 2017 the mother Dhanabakkiam affirmed the same with further more details and information and executed a registered Will on 21.09.1998 bearing Doc.No.23/98. The defendant alone is paying the taxes to the suit property till date. Therefore, the plaintiffs are not entitled for any share in the suit schedule property.
9. The Trial Court framed the following issues for consideration:
“(1) Whether the plaintiffs are entitled to 1/6 share each in the suit property ?
(2) Whether the plaintiffs are ousted from the family of defendant ?
(3) Whether the plaintiffs are entitled to decree as prayed for ?
(4) To what relief the parties entitled ?”
10. On the side of the plaintiffs PW-1 was examined and Exs.A-1 to A-5 were marked as documents. On the side of the defendant, DWs-1 to 4 were examined and Exs.B-1 to B-7 were marked as documents.
11. With reference to Issue Nos.1 and 2, the Trial Court 5/20 http://www.judis.nic.in A.S.No.174 of 2017 considered the averments and made a finding that admittedly, the suit property originally belonged to one Mr.Munusamy, who is none other than paternal grandfather of the plaintiffs and the defendant. The abovesaid Mr.Munusamy purchased the suit property from one Dhanammal under Ex.B-1 on 29.11.1937. Further, it is an admitted fact that the abovesaid Munusamy had 3 sons, namely, Kannan, who is the father of the plaintiffs and the defendant, Kuppan and Varadhan. It is further admitted fact that after the death of Mr.Munusamy, the abovesaid 3 sons partitioned the properties and got 13 cents each. After that two sharers, i.e., Kuppan and Varadhan sold their 2/3 rd share to an extent of 0.26 cents to Kannan under Ex.B-2 on 27.11.1972. The father Kannan got the suit schedule property accordingly. PW-1 also admitted the above facts in the cross- examination. Further, it is admitted by both the parties that all plaintiffs married even before 1983. It is further admitted that the father of the parties, namely, Kannan died on 23.08.1996 and the mother Dhanabakkiam died on 15.11.2013. The Exs.A-3, B-6 and B-7 established these facts and further these facts are admitted by both the parties.
12. The plaintiffs claimed 1/6 share in the suit schedule 6/20 http://www.judis.nic.in A.S.No.174 of 2017 properties of their father. The case of the defendant is that he purchased only 0.26 cents in the name of his father Kannan since the defendant was working in BSNL from 1966 onwards. Further, it is contended that his father executed Ex.B-4 Will in his favour and subsequently, his mother also executed Ex.B-5 Will in his favour bequeathing the suit schedule property. Accordingly, the defendant alone is the absolute owner of the suit schedule property.
13. It is an admitted fact that the father of the parties had 0.13 cents by way of partition along with his brother. There is no evidence regarding the date of death of Munian, the grandfather of the parties. Admittedly, the father Kannan died on 23.08.1996. Thus, the succession opens on that day. The abovesaid Kannan died after the Tamil Nadu Amendment Act, 1989 and before Hindu Succession (Amendment) Act, 2005. Therefore, as per Tamil Nadu Amendment Act, the death of a co-parcener after 25.03.1989 and before the commencement of the Central Amendment Act, made under the Hindu Succession (Amendment) Act, 2005 will not make the daughters, who got married prior to 25.03.1989 as co-parceners. Accordingly, the plaintiffs are not entitled to get partition in the 0.13 cents. However, as per Explanation to Section 6(3) of the Hindu Succession Act, 1956, 7/20 http://www.judis.nic.in A.S.No.174 of 2017 the father had half (½) share and his son, the defendant had half share in 0.13 cents. Accordingly, the father Kannan was entitled to 0.6-1/2 cents and defendant is entitled to 0.6-1/2 cents. In the share of father Kannan, the legal heirs, wife, plaintiffs and defendant are entitled equally. Accordingly, in the 0.6-1/2 cents all are entitled to 1/7 share. The defendant is entitled to 0.6-1/2 cents as co-parcener and 1/7 share in 0.6-1/2 cents as legal heir of Kannan.
14. As far as 0.26 cents is concerned, though the Sale Deed stands in the name of Kannan, the defendant contended that he only paid the sale consideration and purchased the property in favour of his father to dignify his father. Ex.B-3 shows that he was joined Indian Postal and Telegraph Department in the year 1966. The defendant also deposed in this regard. Thus, his father executed the Will.
15. The Trial Court also considered these aspects and arrived a conclusion that 0.26 cents was purchased by the father of the plaintiffs and the defendant in his name. So the suit schedule property absolutely belonged to the father of the plaintiffs and the defendant. After the demise of the father, the plaintiffs and the 8/20 http://www.judis.nic.in A.S.No.174 of 2017 defendant and their mother are legal heirs to the abovesaid suit schedule property. Under these circumstances, the defendant relied Exs.B-4 and B-5 Will in his favour and claimed the entire suit schedule property.
16. The Trial Court tested the genuinity of the Will. The suspicious circumstances regarding the execution of the Will was also considered by the Trial Court. The father executed an unregistered Will and the defendant further said that the mother subsequently registered the Will on 21.09.1998. If the unregistered Will executed by the father is invalid on certain amount of suspicious circumstances, then the subsequent Will executed by the mother, cannot be validated. Thus, the Trial Court considered the Will executed by the father, which is unregistered. Ex.B-4 Will is unregistered, which is executed by the father of the plaintiffs and the defendant Mr.Kannan on 28.07.1995. Perusal of the Will reveals that one Mr.Nagarathinam and Mr.Ramamoorthy were signed as witnesses and one Chandrakumar drafted the Will. DW-2 was examined on the side of the defendant. He had stated in his chief examination that the Executor Kannan signed before him and he and one Ramamoorthy signed as witnesses. 9/20 http://www.judis.nic.in A.S.No.174 of 2017
17. Per contra, during the cross-examination, DW-2 had stated as under:-
“Kd;Tl;ona capy; vGjptpl;L mjd;
gpwF vd;id rhl;rp ifbaGj;J nghl
Tg;gpl;lhu;/ vt;tst[ !;lhk;g; ngg;gupy; capy;
vGjpdhu; vd;w tptuk; vdf;F bjupahJ/ capy;
vGjp vd;dplk; vLj;J te;jhu;/ vd;d tptuk;
vd;W nfl;nld;/ gpwF mjpy; ifbaGj;J
nghl;nld;/ capy; ,uz;L !;lhk;g; ngg;gupy;
vGjg;gl;oUe;jJ/ ehd; jhk;guj;jpy; fh';fpu!;
fl;rp mYtyfj;jpy; itj;J ifbaGj;J
nghl;nld;/ Vw;fdnt ilg; bra;J itj;jpUe;jjpy; ehd; ifbaGj;Jg; nghl;nld;/ ehd; ifbaGj;Jg;
nghLk;nghJ vGjpatu;fs; ,uz;Lngu;. Vd; khkh.
ehd; kw;Wk; ,d;bdhUtu; ,Ue;jhu;/ jw;nghJ "hgfk; ,y;iy/ bkhj;jjk; Ie;J ngu; ,Ue;njhk;/ ???????? capiy vd;dplk; bfhLj;j md;nw ifbaGj;Jg;nghl;nld;/ ehd; Kjypy; goj;Jg;
ghu;j;njd; vdf;F FHg;gkhf ,Ue;jJ/ mjd; gpd;
capy; vGjpatu; vdf;F tpsf;fkhf goj;Jf;
fhl;odhu;/ ?????? capy; vGJk;nghJ
irjhg;ngl;il jhYfhtpy; ,Ue;jJ/ th/rh/M/2y;
1977k; tUlj;jpnyna _bgUk;g[J}u; jhYfh vd;W
Fwpg;gplg;gl;oUe;jJ vd;why; vdf;F fz;
k';fyhf cs;sJ/ ????? ,e;j capy; jl;lr;R
bra;a[kn
; ghJ ehd; Tl ,y;iy/ v';nf jl;lr;R
bra;jhu;fs; vd;w tptuk; vdf;F bjupahJ/
bry;yg;gd; brhj;ij mtu; bgaupy; vGJtjw;F
ntz;lhk; vd;Wk; mg;gh bgaupy; ,Ug;gJ bgUik
10/20
http://www.judis.nic.in
A.S.No.174 of 2017
vd;W brhy;yp te;jjhy; capiy up$p!;lu;
mYtyfj;jpy; itj;J vGjhky; fh';fpu!; fl;rp
mYtyfj;jpy; itj;J vGjpdhu;fs;/@
18. The Trial Court carefully examined the deposition of DW-2 during the cross-examination and arrived a conclusion that DW- 2 is not a reliable witness. Further, the Trial Court found that the Ex.B- 2 Sale Deed of Mr.Kannan, the schedule of property was clearly mentioned as Chengalpattu District, Pallavaram Sub District, Sriperumbudur Taluk, 68 number Kerugambakkam Village. But in the Ex.B-4 Will, the schedule of property mentioned as Chengalpattu Jilla, Saidapettai Taluk. Even in the year 1972 document, the name of Taluk is mentioned as Sriperumbudur. But in Ex.B-4 Will dated 28.07.1995 mentioned as Saidapettai Taluk. Under those circumstances, the Trial Court found that the Will is a suspicious document and accordingly, arrived a conclusion that such a suspicious Will cannot be taken as a valid document for the purpose of relying upon the case put-forth by the defendant. Thus, the Trial Court held that the genuinity of the Will has not been proved by the defendant and in fact, on a perusal of the document as well as the deposition of the witnesses revealed that there are suspicious circumstances with reference to the Will produced 11/20 http://www.judis.nic.in A.S.No.174 of 2017 by the defendant to establish his case.
19. This Court is of the considered opinion that whether a particular Will is surrounded by suspicious circumstances or not is a question of fact and it depends upon the facts and circumstances of each case. While the execution of the Will is attended by suspicious circumstances, the propounder has to explain the circumstances and has to remove the suspicion of the Court in order to satisfy the conscious of the Court. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in making of the Will under which, he receives substantial benefits, interventions, arbitrations and alterations in the Will are all in the nature of circumstances, which shows the suspicion about the execution of the Will itself.
20. Considering these principles, this Court has to apply the facts and circumstances placed and established before the Trial Court. The primary facts are that till such time the Will was filed before the Trial Court after institution of the suit, the plaintiffs as well as the defendant were unaware of the facts. The said factum was not disputed by the defendant before the Trial Court. They were taken by 12/20 http://www.judis.nic.in A.S.No.174 of 2017 surprise when the Will was introduced by the defendant to the other heirs of the deceased father. The said circumstances are able to be ascertained with reference to the manner in which the facts were placed before the Trial Court and the pleadings were made in this regard. Careful perusal of the pleadings as well as the documents placed before this Court, this Court is able to ascertain that at the time of execution of the Will by the father, undoubtedly the plaintiffs as well as the defendant were not aware about the execution of any such Will. Secondly, even before this Court the parties to the appeal suit were admitted that there was no dispute or strained relationship between the father and children. The father showered equal love and affection with all the children throughout his life time and, there was no enmity or otherwise. Further, it is contended that all along the sisters and the brother were attending the father by frequently visiting his house. In the absence of any such strained relationship and in normal circumstances, a father would divide his properties equally to all the children and if the position is other wise, it is the bounden duty of the party benefited out of such Will to establish and prove, if the father has taken a contrary view. This Court is of the opinion that when a father, in normal circumstances, is bequeathing property to the advantage of one of the sons, there must be some reason. It is 13/20 http://www.judis.nic.in A.S.No.174 of 2017 further contended by the other legal heirs of the deceased father that the defendant at no circumstances had contributed anything to the father except by utilising the property, which was purchased by the father.
21. Taking note of all the factual circumstances, what is the necessity for the father to bequeath more property to the defendant alone. The said factum is not established before the Trial Court. Even before this Court, the parties could not be able to establish any indifference or inference in respect of these facts. Therefore, this Court has no option, but to consider the findings arrived by the Trial Court in this regard.
22. Taking into these factors, if at all the father, while he was on deathbed, expressed his willingness to execute a Will in favour of his children, he would have called all the children and executed the same, may be one circumstance. If not possible to call all the children and he was not in a position to do so, at least, the third defendant, admittedly, was with the father, would have informed the other legal heirs regarding the proposal of Will said to have been executed on 28.07.1995.
14/20 http://www.judis.nic.in A.S.No.174 of 2017
23. Admittedly, the defendant had not informed about the Will to the other legal heirs at the time of its execution. Peculiarly, even at the time of death of their father and after completion of funeral functions also, the defendant had not informed about the Will to the other legal heirs. However, the defendant informed the same at the later point of time, more specifically, after the institution of the civil suit by the plaintiffs. All these circumstances leading to the facts reveals that there is a suspicious circumstance regarding the execution of the said Will, from and out of which the defendant is benefited.
24. There was no strained relationship between the children and the deceased father. There was no other compelling circumstances to hide the fact regarding the execution of the Will. Under those circumstances, this Court is of an opinion that the suspicious circumstance raised by the plaintiff in the suit is to be trusted upon. Beyond the execution of the Will, it is not established before the Trial Court that the contents of the Will was properly explained to the Executor at the time of execution and further, the Executor was fully aware of the contents of the Will and it was his wish. In the absence of establishing these factors, the suspicious 15/20 http://www.judis.nic.in A.S.No.174 of 2017 circumstance raised is to be relied upon.
25. Under those circumstances, the Trial Court considered Ex.B-5 Will, which is a registered Will executed by the mother of the plaintiffs and the defendant. Based on Ex.B-5 Will, the Trial Court made a finding that the extent of 0.26 cents is absolutely belonged to the father Mr.Kannan, who died on 23.08.1996 and his wife Dhanabakkiammal and the son and daughters that is plaintiffs and the defendant are entitled to share equally. Thus, all are entitled to 1/7 share in the 0.26 cents. However, the mother Dhanabakkiammal has executed the Will Ex.B-5 and bequeathed the entire suit schedule property to the defendant. Thus, the Trial Court arrived a conclusion that the mother has no right to execute the entire property and she has a right to execute 1/7 share in 0.6-1/2 cents and 1/7 share in 0.26 cents. Accordingly, the Will Ex.B-5 can be held valid for her share only. Accordingly, a conclusion was arrived that the defendant is entitled to 0.6-1/2 cents and 2/7 share in 0.6-1/2 cents and 2/7 share in 0.26 cents. The plaintiffs are entitled to 5/7 share in total in 0.6-1/2 cents and 5/7 share in 0.26 cents. The contention of the defendant that the plaintiffs are ousted from the family of the defendant, cannot be accepted and the said point was also rightly decided by the Trial Court. 16/20 http://www.judis.nic.in A.S.No.174 of 2017
26. With reference to issue Nos.3 and 4, the Trial Court found that as issue Nos.1 and 2 are concluded by stating that the plaintiffs are entitled to each 1/7 share in 0.26 cents and 0.6-1/2 cents alone and the defendant is entitled to 0.6-1/2 cents and 2/7 share in 0.6-1/2 cents and 2/7 share in 0.26 cents. Thus, it is clear that the defendant is entitled to 0.6-1/2 cents separately. The plaintiffs are entitled to 5/7 share in 32-1/2 cents and the defendant is entitled to 2/7 share in 32-1/2 cents apart from 0.6-1/2 cents. The Trial Court accordingly, concluded and passed a preliminary decree that the plaintiffs are entitled to 1/7 share each in respect of 0.32-1/2 cents out of 0.39 cents. The suit claimed in respect of other extent was dismissed.
27. The appellant though relied upon the unregistered Will executed by his father in respect of the property purchased by him, the Trial Court considered the deposition of DW-2, which is of doubtful nature. This Court, on perusal of the deposition, could able to find that there are contradictions and there is no clarity in respect of the statements made by the said witness. An unregistered Will can be relied upon once it is proved beyond any pale of doubt and under 17/20 http://www.judis.nic.in A.S.No.174 of 2017 suspicious circumstances, if it is found then, the genuinity of the Will cannot be trusted upon. The unregistered Will must be established beyond doubt and such unregistered Will produced by the parties must be trusted with reference to its sanctity and the manner in which the Will was executed or otherwise and moreover, the suspicious circumstances, if any.
28. All these principles are applied in respect of suspicious circumstances raised by the parties in respect of the unregistered Will executed by the father of the plaintiffs and the defendant. The Trial Court rightly arrived a conclusion that the Will produced by the defendant has no genuinity and it cannot be trusted upon on account of the fact that there are suspicious circumstances regarding its execution and the defendant had also not proved the genuinity or otherwise.
29. This being the factum established, this Court has no hesitation in coming to a conclusion that the Trial Court has not committed any perversity or otherwise with reference to the passing of the preliminary decree granting shares to the plaintiffs as well as to the defendant. The principles of law with reference to the Tamil Nadu 18/20 http://www.judis.nic.in A.S.No.174 of 2017 Amendment Act, 1989 as well ass the Hindu Succession Act, 2005 have been rightly interpreted by the Trial Court and there is no infirmity.
30. Thus, the judgment and decree dated 07.11.2016 passed in O.S.No.13 of 2014 on the file of the learned District Judge, District Court No.II, Kancheepuram is confirmed and consequently, the present appeal suit stands dismissed. However, there shall be no order as to costs. Consequently, connected civil miscellaneous petition is also dismissed.
20-12-2019 Index : Yes/No. Internet: Yes/No. Speaking Order/Non-Speaking Order Svn To The District Judge, District Court No.II, Kancheepuram.
19/20 http://www.judis.nic.in A.S.No.174 of 2017 S.M.SUBRAMANIAM, J.
Svn A.S.No.174 of 2017 20-12-2019 20/20 http://www.judis.nic.in