Madras High Court
V.Gomathi vs Ramakrishnan Asari (Died) on 21 July, 2017
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.07.2017 RESERVED ON : 13.07.2017 DELIVERED ON : 21.07.2017 CORAM THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR S.A.No.1519 of 1997 Seethaiammal(Died) 1.V.Gomathi 2.K.Vasantha .. Appellants (Appellants 2 & 3 are impleaded vide Court Order, dated 03.10.2016) Vs. Ramakrishnan Asari (died) 1.Balasubramanian 2.Thangalakshmi ..Respondents (Respondents 2 & 3 brought on record as Lrs of the deceased sole respondent vide Court Order, dated 31.12.2002) PRAYER: Second Appeal is filed under Section 100 of the Code of Civil Procedure to allow the appeal and thereby setting aside the judgment and decree in A.S.No.168 of 1996 on the file of the I Additional District Judge, Tirunelveli dated 28.07.1997 reversing the judgment and decree in O.S.No.78 of 1996 on the file of the Additional District Munsif Court, Tirunelveli dated 26.09.1996. !For Appellants : Mr.R.Manimaran ^For R2 & R3 : Mr.D.Nallathambi :JUDGMENT
Aggrieved over the judgment and decree passed by the first Appellate Court reversing the decree and judgment passed by the Trial Court declining to pass a decree of recovery of possession, the defendants have filed the present second appeal. For the sake of convenience, the parties are referred to as per their rank in the suit.
2.The brief facts of the plaintiff case are as follows.
The suit properties originally belonged to one Eswaramoorthy and he has executed a Will on 02.04.1939 bequeathing the suit property with life interest to his two wives. Thereafter, the sons of his brother namely, the plaintiff and his two brothers, who enjoyed the property without right of encumbering. The plaintiff and his brothers were given life estate and thereafter for their legal heirs for life, and successive life in fact creates for generation to generation. The plaintiff brother one Ganapathy died on 30.04.1979 issueless and another brother one Thangavel died on 25.02.1991 leaving a son and daughter as his legal heirs. As per the terms of the Will, after the death of said Thangavel Asari, the plaintiff is entitled to the suit property. The first defendant claims to have purchased the property from the wife of said Ganapathy Asari. The second defendant is son-in-law of the first defendant. They attempted to put up a superstructure in the suit property on 03.08.1991. The plaintiff immediately sent a notice on 19.08.1991. The defendants sent a reply stating that the property belongs to them. Hence, the plaintiff has filed the suit for recovery of possession.
3.The case of the defendants is that on the death of the last widow, the testator, the suit property devolved on the plaintiff and his two brothers and they got the property absolutely and enjoyed the same as joint owners. The restriction for life mentioned in the clause in the Will is repugnance for the fact that it creates perpetual restriction. There cannot be successive and permanent life estate. The plaintiff and his brothers have understood the provisions of the Will and also enjoyed the property as absolute owners. The plaintiff and his brothers partitioned the property, bequeathed by original owners by a registered partition deed. The plaintiff being a party to the registered partition deed, cannot question the validity of the partition and he is estopped both by deed and conduct from questioning the nature of the estate enjoyed by the Ganapathi Asari. The said Ganapathi Asari under terms of the registered partition deed was in possession and enjoyment of the property excluding the plaintiff and other brothers and he has also executed a mortgage deed. Subsequently after his death, the wife of the Ganapathi Asari has sold the property to the first defendant for sale consideration of Rs.9,000/-(Rupees Nine Thousand only). Hence, it is the contention of the defendants that the suit itself is not maintainable.
4.The Trial Court on the basis of the pleading framed the following issues:-
?1.Whether the plaintiff is estopped from doing the partition dated 19.01.1970?
2.Whether the suit without a prayer for setting aside the partition dated 19.01.1970 is maintainable?
3.Whether the plaintiff is entitled to recovery of possession and mesne of profit.?
5.After analyzing the evidence both oral and documentary, the Trial Court dismissed the suit. As against which, the plaintiff has filed an appeal in A.S.No.168 of 1996. The first Appellate Court allowed the appeal and granted the decree in favour of the plaintiff. Assailing the same, the present second appeal has been filed.
6.At the time of the admission, the following substantial questions of law were framed.
"1.Whether the lower Appellate Court erred in holding that the respondent is not estopped from claiming that Ex.B1 is not valid in law?
2.Whether the lower Appellate Court erred in holding that the estoppel is only a question of law?
3.Whether the lower Appellate Court failed to note that what was not pleaded by the respondent in the plaint should not be taken into consideration and all evidence based on matters not pleaded ought to have been rejected?
4.Whether the lower Appellate Court erred in holding that the law of perpetuity contemplated under law of transfer of property Act is subject to a provision of Indian Succession Act?"
7.The learned counsel appearing for the appellants would submit that though the Will was executed on 02.04.1939, life interest was given to two widows and after their life time, the plaintiffs being the sons of the testator brother were given life interest and thereafter, to their legal heirs without any right of encumbrance. It is the contention of the learned counsel for the appellants that successive life interest cannot be created and the same is against Rule of perpetuity. Therefore, it is the contention of the learned counsel for the appellants that after the death of last widow of the testator, the plaintiff, who have given a life interest, become absolute owner, in view of the fact that the successive life interest for generation to generation is void. Considering the above aspect, the plaintiff and his brothers understood themselves and entered into a partition deed and enjoyed the property. One of the brother namely Ganapathi Asari died leaving behind his wife as a legal heirs and they sold the property to the defendants. Therefore, it is the contention of the learned counsel appearing for the appellants that the plaintiff being a party to the partition deed, has estopped from questioning the same. At any event the life interest created for generation to generation is void and as against the Rule of perpetuity, the plaintiff and his brothers infact become the absolute title owners. Therefore, the suit for recovery filed by the plaintiff is not maintainable. Hence, prayed for allowing the appeal.
8.Assailing the above arguments, the learned counsel appearing for the respondents submitted that admittedly at the time of the testator death, the plaintiff and two brothers were minors and they were in existence and they were given only a life interest. Though, the life interest for generation to generation is void, after the death of one of the life estate holder, the property certainly came to the plaintiff being the nearer relative of the testator, since other brother of the plaintiff also died. Hence, It is the contention of the learned counsel for the respondents that the judgment of the first Appellate Court is well balanced and does not require any interference.
9.In the light of the above submission, firstly, this Court has to answer the substantiate question of law No.1, 2, 4 to decide the second appeal.
10.It is not in dispute that the suit property and other properties were originally owned by one Eswaramoorthy, the uncle of the plaintiff. He left the Will, dated 02.04.1939 bequeathing the suit property and other properties to his wives for their life time and after their life time, the plaintiff and his two brothers enjoyed the property for life time and thereafter, vested the same to the legal heirs of the plaintiff and his two brothers without creating any right of encumbrance over the suit property. Infact, the recitals in the Will shows that successive life interest has been created for generation to generation. In this regard, it is useful to refer Section 14 of Transfer of Properties Act, 1882, hereunder.
?14.Rule against perpetuity:- No transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.?
11.Similarly Section 113 of the Indian Succession Act, 1925, reads as follows:-
?113.Bequest to person not in existence at testator's death subject to prior bequest:- Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the Will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.?
12. Section 113 of the Indian Succession Act, 1925 clearly shows that where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the Will, the later bequest shall be void. Therefore from the above Section, it can be easily held that any successive life interest created in favour of a person, who is not in existence at the time of testator death, is void and it cannot be enforced at all. Ex.A3, the Will is only a Xerox copy. The original Will has not been placed before the Court and no grounds whatsoever made for adducing the secondary evidence for loss of original Will as mandatory under Section 65 the Indian Evidence Act,1872. But the facts remains that the Will has not been disputed by the defendants. The only question is whether successive life interest is valid in law.
13.In this regard, a careful perusal of the Will would clearly shows that not only life interest in favour of the plaintiff and two brothers, who being sons of the testator brothers, is created, serious of successive life interest is also created in favour of the legal heirs of the plaintiff and his two brothers.
14.It is settled law that no such valid successive life interest can be created in favour of the persons, who are not in existence. When the person, in whose favour successive life interest was created is not in existence at the time of testator death, such bequeaths creating successive life interest, is void. Therefore, on the date of the death of the testator, only legatees namely, the plaintiff and his two brothers were alive. Infact, after the death of two widows of the testator, the property was devolved upon them as a life estate holders. In view of the rule against the perpetuity, successive life interest created for various persons, who are not in existence, is not valid. The property devolved upon the plaintiff and two brothers, would be only an absolute estate and not mere life interest holders. Therefore, this Court is of the view that the contention of the appellants that after the death of one of the brothers, as a life estate holder, is entitled to suit property cannot be sustained. Once the property is passed on to the plaintiff and his two brothers as an absolute estate, after the death of the any of the legatee, the property is liable for successive as per law.
15.Admittedly, in this case, one of the legatee, namely, Ganapathi Asari, died on 30.04.1979 leaving behind his only widow and she has sold the property to the defendants. Therefore, the plaintiff's contention that he is entitled to recover the suit property, cannot be countenanced, since, the successive life estate is against the Rule of Perpetuity. The legal heirs of the plaintiff or his brothers may not get property as per the Will, Ex.A3. But, they are certainly entitled to succeed the property after the life time of the life estate holders.
16.In this regard the learned counsel for the appellants relied on the judgment reported in 1987 Madras Law Journal (K.Ramamurthi vas. T.R.Mani), wherein this Court has held as follows:-
?8. In so far as the bequest regarding the first schedule properties in favour of the first appellant is concerned, the testator has provided that the first appellant and his heirs should from generation to generation enjoy the properties without in any manner emcumbering them and perform the charity of feeding the Brahmins on ?Thuvadasi' days with the income therefrom. The interest thus conferred on the first appellant with reference to the first schedule properties is only a life interest. Clause 3 of the will creates not only a life interest in favour of the first appellant but also a series of successive life interests in favour of the heirs of the first appellant. No such valid successive life interest can be created in favour of persons in existence and unborn persons. But when there is a gift to a class of persons some of whom are in existence and others are not, such a gift will be valid and take effect with regard to persons in existence at the time of the testator's death and invalid regarding others, but it does not fail wholly and totally. The first appellant was undoubtedly alive when the testator died in 1982 and, therefore, the life interest in respect of the first schedule properties conferred in his favour under the Will Ex.A1 would undoubtedly take effect. But as regards respondents 1 and 2, they were not in existence on the date when the Will under Ex.A1 took effect for, it is seen from the plaint that they were born in 1945 and 1947 respectively, while the Will had come into effect in 1928, on the death of the testator. The creation of successive life estates and that too in favour of persons not in existence is not permissible in law and the life estate so created in favour of persons in existence and those not in existence would take effect with reference to those in existence at the time of the death of the testator and invalid as to the rest. This is clearly laid down by the Supreme Court in Bajrang Bahadur Singh v. Bakhtraj Kuer, (1953)1 M.L.J. (S.C.) 108 : A.I.R. 1953 S.C. 7 : 1952 S.C.J.655. In view of this, it follows that the life estate conferred in favour of the first appellant under the Will Ex.A1 which reference to the first schedule properties thereunder alone is valid and not the subsequent life estates in favour of his heirs, who were not in existence on the date when the testator died. It also follows that the successive life estates in favour of the heirs of the first appellant or the restrictions regarding the alienations imposed under Cl.3 of the Will would not be binding upon respondents 1 and 2. The first appellant under Ex.A1 secured only a life interest in the first schedule properties (the suit properties) and the reminder vested in respondents 1 and 2 free from the restrictions imposed on the nature of the estate and the power of dealing with the property. That would mean that any dealing by the first appellant regarding the suit properties would not enure beyond his lifetime. Respondents 1 and 2 are, therefore, entitled to succeed to the properties after the lifetime of the first appellant and the transactions of partition and other alienations entered into by the first appellant would not, therefore, be binding upon respondents 1 and 2.?
The judgment reported in (2017) 3 MLJ 303 (R.Sakunthala and another vas. P.Renganathan and others) this Court has held as follows:-
?17. When the law clearly prohibits successive life interest, to give a purposive meaning to the Will of the testator, the surviving life interest holders when the Will came into force, has to enjoy the property absolutely and not the persons born subsequent to the death of the testator. In the case, Will is dated 01.04.1943. The testator died on 07.05.1945. On the date of his death, as per the Will the surviving life interest holders were his first wife son, his third wife Andalammal and her two sons. Even her third son Mohanraj born after the Will is not a beneficiaries under the will. More so the plaintiff and defendants 4 to 7 who were not born at that time. Therefore, when the succession opened, the life interest holders have become the absolute owners in the light of the law under Section 113 of the Indian Succession Act.?
17.Having regard to the above judgment and also the facts of the case, as the successive life interest created is against the Rule of Perpetuity, the plaintiff and two brothers took the property, after the death of the widows of the testator and they enjoyed the property only as absolute owners. This fact is further established by the conduct of the parties themselves. Infact, the plaintiff and his two brothers have entered into a registered partition deed and partitioned the property themselves. The recitals found in the Ex.B1 clearly shows that infact the parties were aware of the rights under the Will and only after understanding the nature of the rights in respect to the property got from the Will, they entered into partition among themselves. The evidence of the P.W.1 would also clearly show that he understood the nature of the Will and rights of the parties, and entered into the partition deed. His evidence does not indicate any semblance of misconception and misreading of the Will. Therefore, it cannot be stated that the plaintiff and his two brothers wrongly understood the Will and entered into the partition deed as if the property is absolute property. When the person knowing the rights and consequences enters such deed, consciously now cannot contend that only on wrong understanding of law they entered into such partition deed. Infact the conduct of the plaintiff amounts to estoppel.
18.In view of the discussion, the Points 1,2,4 are answered accordingly. Question of Law No.3 does not require any answer, since the same is not relevant to decide the second appeal.
19.After hearing the parties, this Court framed the Additional substantial question of law:-
?Whether the Xerox copy of the Will can be relied upon to decide the rights of the parties without the proof of the Will as required under law.?
20.Though rights have been claimed on the basis of Ex.A1 Will, Xerox copy of the Will has been filed, of course, the Will has not been disputed by the defendants. It is to be noted that, it is not the case of the plaintiff that the original Will is neither totally lost nor in-legible. P.W.1-Chief Examination would clearly shows that the original Will was with him, and not destroyed. He has stated that since the document had become old, he could not produce the original Will, except stating that, he has not given any reasons for filing Xerox copy. This evidence itself clearly indicate that in fact the original Will is in his possession without accounting for loss of original, just like that he filed the Xerox copy, which is also admitted before the Trial Court without any objections. When the law mandates certain things to be done in a particular manner, the secondary evidence should have been received only on the compliance of provisions of Section 65 of the Indian Evidence Act, 1872. Without establishing the loss of original or its destruction, the Xerox copy cannot be received as evidence as a matter of right as a secondary evidence. That apart, having exhibited the Will as Ex.A3, the trial Court as well as the appellate Court did not consider the mandatory provisions for proving the Will as contemplated under Section 68 of the Indian Evidence Act,1872. For proving of the Will, the compliance under Section 68 of the Indian Evidence Act,1872 is mandatory. Only when the attesting witnesses are not alive, then resorting procedure under Section 69 of Evidence Act will come into play. The plaintiff has not discharged his onus in proving the Will in the manner known to law. Therefore, merely because the Will has not been denied in the written statement, that itself cannot be taken into the proof of the Will Ex.A3. Though it is not necessary to call the attesting witness in proving of witness of any document, which has been registered in accordance with provisions of Indian Evidence Act, when the execution is admitted or not denied, the proviso to Section 68 of the Indian Evidence Act, is not applicable to the Will. Therefore, irrespective of the denial or non denial of the Will, the proof of Will as per Section 68 or Sections 69 and 71 of the Indian Evidence Act, is mandatory. None of the conditions for proving the Will were complied by the plaintiff. Therefore, this Court is of the view that very relying of the Will itself to decide the right of the plaintiff is not according to law. Further, the presumptions under Section 90 of the Indian Evidence Act, 1872 cannot be applied, in respect of the Will is concerned. Unless and until the Will is proved in the manner known to law, the plaintiff cannot claim any right over the alleged Will Ex.A3. Accordingly, this point is answered.
21.The Second Appeal is allowed setting aside the judgment and decree passed by the I Additional District Judge, Tirunelveli, dated 28.07.1997 made in A.S.No.168 of 1996. The judgment and decree passed by the Additional District Munsif Court, Tirunelveli, in O.S.No.78 of 1996 is restored. The suit is dismissed.
To:
1.The I Additional District Judge, Tirunelveli.
2.The Additional District Munsif, Tirunelveli.
3. The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.
.