Madras High Court
S.Arumugha Perumal vs Nagammal on 7 March, 2022
Author: R.Subramanian
Bench: R.Subramanian, N.Sathish Kumar
A.S.No.794 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.03.2022
(Reserved on 24.02.2022)
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.No.794 of 2002
and
CMP(MD)No.8760 of 2021
1.S.Arumugha Perumal
2.S.Sivakami(Died)
3.S.Rajam
4.S.Chellam
5.S.Parvathy
6.C.Natesan @ Natarajan ... Appellants
(6th Appellant brought on record as LR of the deceased 2nd Appellant
vide court order dated 01.02.2018 made in CMP(MD)No.190/2016 in
A.S.No.794/2002)
vs.
1.Nagammal
2.Lekshmi
3.Nani
4.Nagarathinam
5.Chellappa(Died)
6.Namasivayam(Died)
7.Thayammal
8.N.Chockalingam
9.Lekshmi
10.Sivakami
11.Baby
12.Rajamani
13.Papa
14.Murugan
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A.S.No.794 of 2002
15.Rajagopal
16.Usha ... Respondents
(Respondents 7 to 10 brought on record as the LRs of the deceased 6th
respondent vide order dated 9.11.17 made in M.P(MD)Nos.1 to
3/2008)
(Respondents 11 to 16 brought on record as LRs of the deceased 5th
respondent vide order dated 6.1.14 made in M.P(MD)No.2/2011)
Appeal filed under Section 96 of the Civil Procedure Code,
against the judgment and decree of the learned I Additional
Subordinate Judge, Nagercoil, made in O.S.No.232 of 1998 dated
08.11.2002.
For Appellants : Mr.K.N.Thambi for Mr.K.Sreekumaran Nair
For R1 to R4 : Mr.T.Arul
For R11 to R13,
R15 & R16 : Mr.S.Ramesh
For R14 : Mr.F.Deepak
R7 to R10 : No appearance
JUDGMENT
R.SUBRAMANIAN, J.
AND N.SATHISH KUMAR, J.
Challenge in this appeal is to the decree in O.S.No.232 of 1998, dated 08.11.2002, on the file of the learned I Additional Subordinate Judge, Nagercoil, by the defendants 2 to 6 in the said suit.
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2. The second appellant died pending appeal and her husband / 6th appellant herein, has been brought on record as legal representative. The suit in O.S.No.232 of 1998 was filed by the respondents herein, seeking partition and separate possession of their 2/3rd share in the suit properties and for a decree for permanent injunction restraining the defendants from making any encumbrance over the suit schedule properties.
3. According to the plaintiffs, the suit properties originally belonged to one Chockalingam who died without issues in 1966. The said Chockalingam had married one Rama Lakshmi, who pre-deceased him. It is claimed that one Lakshmi predecessor of the defendants 2 to 6 was working for the deceased Chockalingam and the defendants 2 to 6 have created certain documents in their favour to bring their proximity. The plaintiffs are the grand-children of the brothers of Chockalingam. According to the plaint, Chockalingam had four brothers namely, S.Bhagavathy, S.Sankara Narayanan, S.Arumugaperumal, S.Namasivayam and two sisters namely, Krishnamuthu and Vanniyaperumal. It is stated that S.Bhagavathy had a son by name, Sankara Chinthamony, who had a son by name, Chellappa. The wife and children of the said Chellappa are plaintiffs 1 Page 3/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 to 4 in O.S.No.232/1998. The other brother S.Sankara Narayanan had a son by name, Sankara Chinthamony, who died leaving behind two sons namely, Chellappa/5th plaintiff and Rajagopal. It is also stated that the children and wife of Rajagopal left Nagercoil several years ago and their whereabouts is not known. S.Namasivayam, the other brother of Chockalingam had a son by name, N.Sankarachinthamony and his son S.Namasivayam is the 1st defendant in the suit. It is claimed that since Chockalingam died without issues, the properties would devolve on his heirs under Section 8 of the Hindu Succession Act, 1956. Contending that S.Arumugaperumal, one of the brothers of Chockalingam, died issueless, the plaintiffs would claim 2/3rd share (1/3rd to plaintiffs 1 to 4 and 1/3rd to the 5th plaintiff Chellappa and his brother's children who had left Nagercoil). The 1st defendant being the grandson of another brother of Chockalingam would be entitled to 1/3 rd share. The defendants 2 to 6 who are the children of the brother and wife of the pre-deceased son of a brother of Lakshmi, according to the plaintiffs, have no right in the property. A plea to the effect that Lakshmi was not the legally wedded wife of Chockalingam, was also raised. It is claimed that the Wills set up by them dated 15.04.1955 and 18.06.1992 said to have been executed by Chockalingam and Lakshmi respectively, are not valid. Therefore, according to the Page 4/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 plaintiffs, even assuming that Lakshmi had married Chockalingam, the defendants 2 to 5 have no right over the property, as the property inherited by a female Hindu from her husband in the absence of her heirs, would devolve on her husband's heirs in terms of Section 15 of the Hindu Succession Act, 1956.
4. The 1st defendant supported the case of the plaintiffs. The defendants 2 to 6 resisted the suit, contending that Lakshmi was the legally wedded wife of Chockalingam and Chockalingam had in fact executed a registered will dated 15.04.1955, bequeathing all his properties in favour of his second wife Lakshmi and Lakshmi had also filed a Succession O.P in O.P.No.58/1969, wherein, the said Will was upheld. It was also claimed that the status of Lakshmi as the legally wedded wife of Chockalingam, was affirmed by the Court in O.P.No. 58/1969. The said Lakshmi had in turn executed a registered Will dated 18.06.1992 bequeathing the properties to defendants 2 to 6. The said Will was also registered as Document No.23/1992. Therefore, according to the defendants, as per the Will of Lakshmi, dated 18.06.1992, the entire properties of Chockalingam devolved on the defendants 2 to 6. The claim that Lakshmi was not the legally wedded wife of Chockalingam was stoutly denied and the findings in Page 5/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 O.P.No.58/1969 were projected as conclusive and binding on the plaintiffs also.
5. At trial, the 4th plaintiff N.Nagarathenam was examined as PW1 and Exs.A1 to A5 were marked. The 2nd defendant was examined as DW1 and one Ayyappan, an attesting witness to the Will dated 18.06.1992 executed by Lakshmi, was examined as DW2 and Exs.B1 to B15 were marked.
6. The learned trial Judge framed the necessary issues and concluded that Lakshmi was not the legally wedded wife of Chockalingam. She also found that the Will dated 15.04.1955 is not valid as it does not specifically state the properties which are bequeathed to Lakshmi. Since the Will of the year 1955, had not been proved, the learned trial Judge held that the Will dated 18.06.1992 is not valid and would not confer title on the defendants 2 to 6. On the abovesaid findings, the learned trial Judge granted a decree in favour of the plaintiffs.
7. We have heard Mr.K.N.Thambi, learned counsel appearing for Mr.K.Sreekumaran Nair, learned counsel for the appellants, Page 6/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 Mr.T.Arul, learned counsel for the respondents 1 to 4/plaintiffs. Mr.S.Ramesh, learned counsel for the respondents 11 to 13, 15 and 16, who are the legal heirs of the deceased 5 th respondent and Mr.F.Deepak, learned counsel for the 14th respondent, who is also the legal heir of the deceased 5th respondent. None appears for the respondents 7 to 10, who are the legal heirs of the deceased 6 th respondent.
8. Mr.K.N.Thambi, learned counsel appearing for the appellants would vehemently contend that the trial Court was not right in concluding that Lakshmi was not the wife of the deceased Chockalingam. Relying very strongly upon Ex.A4-judgment in O.P.No. 58/1969, Mr.Thambi would submit that the status of Lakshmi has been conclusively decided in the said original petition and therefore, the trial Court was not right in concluding that Lakshmi is not the wife of Chockalingam. He would also point out that in Ex.B4-Will dated 15.04.1955, Chockalingam has declared Lakshmi to be his wife and the trial Court according to the learned counsel, was not right in rejecting Ex.B4 on the ground that it does not contain a schedule of property. The learned counsel would point out that Lakshmi being the universal legatee of the entire estate of Chockalingam, there was no Page 7/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 necessity for a schedule of property to be specified in the said instrument.
9. The learned counsel would also point out that the Sub Court, Nagercoil, in O.P.No.58/1969 had gone into the question of validity of the marriage between Chockalingam and Lakshmi and the validity of the Will of Chockalingam dated 15.04.1955. In fact, the two points for consideration framed in the said original petition namely,
i) whether the petitioner Lakshmi is the second wife of deceased Chockalingam, and
ii) whether the petitioner Lakshmi is the sole heir of deceased Chockalingam, have been answered in the affirmative in favour of Lakshmi. Therefore, the learned trial Judge was not right in ignoring Ex.A4 to conclude that Lakshmi is not the legally wedded wife of Chockalingam and the Will Ex.B4 is not valid, for the reason that it does not contain a schedule.
10. The learned counsel would further argue that even in the absence of the Will dated 15.04.1955, Chockalingam having died after the commencement of the Hindu Succession Act, 1956, on Page 8/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 07.12.1966, Lakshmi being the wife, would be the sole heir under Section 8 of the Hindu Succession Act, 1956. Therefore, according to the learned counsel, immaterial of the fact that the Will Ex.B4 is proved or not, Lakshmi would be the absolute owner of the properties or estate of Chockalingam upon his death on 07.12.1966. The learned counsel would further point out that Lakshmi having executed a Will dated 18.02.1996 bequeathing the properties in favour of the defendants 2 to 6, the plaintiffs or the 1st defendant or any other person related to Chockalingam, would not be entitled to any claim over the suit properties.
11. Contending contra, Mr.T.Arul, learned counsel appearing for the respondents 1 to 4 would submit that no doubt true that Lakshmi has been recognised as the second wife of Chockalingam and on the death of Chockalingam, the properties would be inherited by Lakshmi in terms of Section 8 of the Hindu Succession Act, 1956. However, according to him, Ex.B5 Will has not been proved in a manner known to law and therefore, the properties that were in the hands of Lakshmi upon her death would devolve on her husband's heirs in terms of sub-section (2) of Section 15 of the Hindu Succession Act, 1956. The learned counsel would further contend that the Will- Page 9/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 Ex.B5 does not contain the signature of Lakshmi and the reason given for affixing her thumb impression is belied by the version of the attesting witness who had deposed that Lakshmi's eye site was perfect and she was in a good disposing state of mind at the time of execution of Ex.B5. Therefore, according to the learned counsel, Ex.B5 having not been proved, the defendants 2 to 6 who are the Lakshmi's brother's children and brothers' daughter-in-law, would not be entitled to claim any right over the suit property of Chockalingam.
12. We have considered the rival submissions.
13. The following points arise for determination in the case on hand:-
i. Whether the plaintiffs and the 1st defendant as the heirs of Chockalingam, would be entitled to succeed to the property on the death of Lakshmi, the second wife of Chockalingam?
ii. Whether the Will dated 18.06.1992 has been proved in accordance with law?
iii. Whether Lakshmi succeeded to the estate of Chockalingam upon his death on 07.12.1966?
Page 10/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 Point No.3:-
14. As the decision on the other points would depend on the conclusion on this point, Point No.3 is taken up first for disposal.
Admittedly, the properties belonged to Chockalingam absolutely. Upon his death on 07.12.1966, Section 8 of the Hindu Succession Act, 1956, would come into play and his properties would devolve on his Class-I heirs on the date of his death. In O.P.No.58/1969, the Sub Court, Nagercoil, had rendered a definite finding that Lakshmi is the second wife of Chockalingam. Therefore, the status of Lakshmi cannot be re-agitated in the suit. Hence, it is concluded that Lakshmi is the wife of Chockalingam and the said conclusion of the Sub Court, Nagercoil, is also buttressed by Ex.B11-Legalheirship Certificate and other documentary evidence. Above all, Chockalingam himself in the Will Ex.B4, described Lakshmi as his wife. Being the Class-I heir of Chockalingam, Lakshmi would inherit the entirety of his property to the exclusion of the other heirs. Therefore, Point No.3 is answered in favour of the appellants.
Point Nos.1 and 2:-
15. These two points will have to be taken up together for disposal as they are intertwined and a decision on the second point on Page 11/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 the validity of the Will, will have an effect on the succession of the estate of Chockalingam. As far as the Will Ex.B5 is concerned, it is the contention of Mr.T.Arul, learned counsel appearing for the respondents 1 to 4 that it has not been proved in accordance with law. The learned counsel would attempt to point out certain discrepancies in the evidence of DW2, the attestor, in support of his contentions. In the Will which is a registered instrument, a statement is made by the Testatrix that she normally signs, but she had affixed her thumb impression in the Will, since her eye-sight has been affected. However, DW2 the attesting witness has deposed that her eye-sight was normal and she was in a good disposing state of mind.
16. Pointing out the above contradictions, Mr.T.Arul, would contend that the Will-Ex.B5 has not been proved in accordance with law. We are unable to accept the said submission of the learned counsel. It is open to the Testator or Testatrix to either affix his / her thumb impression or sign in a testamentary instrument. The Testatrix had given a reason for not signing the instrument. The fact that the Testatrix chose to affix her mark would by itself, will not invalidate the instrument. Ex.B5 is a registered instrument and it is entitled to the presumptions under Section 60(2) of the Registration Act, 1908, which Page 12/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 provides that the events mentioned in the endorsement of the Registrar in the certificate of registration should have to be presumed to have taken place, unless the contrary is proved. In Ex.B5, the Registrar has recorded the fact that Lakshmi appeared before him and admitted execution of the instrument. Therefore, the fact that Lakshmi appeared before the Registrar and admitted execution of the instrument, has to be presumed. It is for the plaintiffs who want to dispute the document to prove otherwise. Unfortunately, there is no evidence in order to enable the court to come to the conclusion that the presumption that is raised under sub section 2 of Section 60 of the Registration Act, 1908, stood rebutted. No attempt has been made either in cross examination of DW2 or elsewhere to discredit or rebut the statutory presumption. Even in the cross examination of DW2, there is no suggestion that Lakshmi did not execute the Will and on the other hand, there is a positive suggestion to the effect that a person known to Lakshmi has signed as attesting witness which would go a long way to show that the plaintiffs have, in fact, admitted execution of Ex.B5 by Lakshmi. The trial Court unfortunately has not gone into the validity of Ex.B5 Will at all, because, it found that Lakshmi was not entitled to the property.
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17. Being a regular appeal under Section 96 CPC and considering the availability of the evidence on the execution of the Will, we have examined the evidence and pronounced upon the execution of the will as we felt that remitting the matter to the trial Court for the said purpose would only result in prolonging the proceedings which are already 2½ decades old. We therefore conclude that the defendants have proved the execution of Ex.B5 Will in a manner known to law.
18. No doubt, in terms of sub Section 2 of Section 15 of the Hindu Succession Act, 1956, a property inherited by a female Hindu from her husband would devolve on her husband's heirs in the event of the female hindu dying issueless. The same would happen only if it is shown that the female Hindu had died intestate. Once Lakshmi had chosen to execute a Will under Ex.B5 and we have upheld the will, the testamentary instrument will take precedence and the property will devolve as per the Will and not as per Section 15 of the Hindu Succession Act, 1956. Therefore, the plaintiffs being the heirs of Chockalingam, would not be entitled to the property of Chockalingam which had actually been inherited by Lakshmi on the death of Chockalingam on 07.12.1966. Therefore, we answer the Points 1 and 2 against the respondents and in favour of the appellants. Page 14/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002
19. The respondents 1 to 4 have filed CMP(MD)No.8760 of 2021 under Order 41 Rule 27 read with Section 151 of the Civil Procedure Code, seeking leave to produce the additional documents. The additional documents that are sought to be produced are vakalat that has been filed by Lakshmi in RCA.No.23 of 1992 on the file of the Sub Court, Nagercoil, and the copy of the counter filed by Lakshmi in the said proceedings. According to Mr.T.Arul, learned counsel appearing for the respondents 1 to 4, these documents are necessary for disposal of the appeal as they would demonstrate that Lakshmi was in a position to sign in the year 1992 and therefore, the claim that her vision was affected at the time of execution of Ex.B5-Will is not correct. The fact that Lakshmi had signed in certain documents subsequent or at a time contemporaneous to the execution of the Will, will not have any bearing, since we have concluded that execution of Ex.B5-Will has been proved in accordance with law. We do not think that these documents would be relevant for disposal of the appeal. Hence, we do not see any reason to entertain this petition. Accordingly, CMP(MD)No.8760 of 2021 will stand dismissed.
20. In fine, we conclude that the respondents would not be entitled to any share in the suit properties. The appeal succeeds and Page 15/17 https://www.mhc.tn.gov.in/judis A.S.No.794 of 2002 the same is allowed. The suit in O.S.No.232/1998 will stand dismissed. No costs.
(R.S.M., J.) (N.S.K., J.)
07.03.2022
Index : Yes / No
Internet : Yes / No
bala
To
The I Additional Subordinate Judge,
Nagercoil.
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A.S.No.794 of 2002
R.SUBRAMANIAN, J.
AND
N.SATHISH KUMAR, J.
bala
PRE-DELIVERY JUDGMENT MADE IN
A.S.No.794 of 2002
DATED : 07.03.2022
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