Madras High Court
R.Suburathinam vs T.Govindaraj on 6 August, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 06.08.2009
CORAM:
THE HONOURABLE MR. JUSTICE G.RAJASURIA
A.S.No.533 of 2007 &
M.P.Nos.1 and 2 of 2007 &
Cross Objection No.48 of 2008.
1. R.Suburathinam
2. N.S.N.Karunanithi
3. U.Malliga
4. U.Sumangala
5. U.Priya
6. Minor Sathiyanarayan
rep. By his mother and natural guardian
Malliga
7. N.Karthigeyan
8. N.Mohankumar
9. N.Palanikumar .. Appellants in A.S.533/07 and
respondents in Cross Objection
No.48 of 2008
Vs.
1. T.Govindaraj
2. P.T.Rajan @ G.Ponnambala Thiyagarajan
3. Kandasamy @ G.Panneer Selvam
4. D.G.Shanmuga Sundaram ... Respondents in A.S.No.533/07 &
cross appellants in Cross Objn.No.48 of 2008
Appeal against the judgment and decree dated 14.03.2007 passed by the learned Additional District Judge (Fast Track Court No.2), Coimbatore in O.S.No.25 of 2005 and counter claim.
For appellants in A.S.533/07 and
respondents in Cross Objection
No.48 of 2008 :: Mr.T.P.Manoharan
For respondents in A.S.No.533/07
& cross appellants in Cross Objn.No.48 of 2008 :: Mr.T.R.Rajagopalan, S.C.
For Mr.S.Senthilkumar
J U D G M E N T
Animadverting upon the judgment and decree dated 14.03.2007, passed by the learned Additional District Judge (Fast Track Court No.2), Coimbatore in O.S.No.25 of 2005 and the counter claim, this appeal is focussed.
2. Broadly but briefly, narratively but precisely, the facts as stood exposited from the plaint could be portrayed and parodied thus:
The suit properties described in the 'A' and 'B' schedules appended to the plaint originally belonged to the plaintiffs' paternal grand mother, Thirumalai Ammal, who derived title to the suit properties through her paternal ancestors. The patta stood in the name of Thirumalai Ammal in respect of the 'A' scheduled property, which is an agricultural land measuring an extent of 11.66 acres. The 'B' scheduled property, which is a house property also came to be vested with Thirumalai Ammal from her paternal ancestors. After the death of Thirumalai Ammal, her only son Thiruvenkadam Pillai, derived title to the suit properties and he was in possession and enjoyment of the same. Thiruvenkadam Pillai had one son and one daughter, namely the deceased first plaintiff Booshanambal, and D1, Govindaraju Pillai. The said Thiruvenkadam Pillai died intestate on 04.02.1963 leaving behind the first plaintiff, Booshanambal and D1, Govindaraju Pillai as his only legal heirs and they derived absolute title to the suit properties and each of them were entitled to half share in those properties. D1, along with his sons D2 to D4, are looking after the 'A' scheduled property and they are sharing the income from it with the plaintiffs. The first plaintiff Booshanambal, along with her legal heirs P2 to P10 have been in possession and enjoyment of the 'B' scheduled property for over 40 years. The said Booshanambal, the first plaintiff died on 30.11.2004 leaving behind the plaintiffs 2 to 10 as her legal heirs to inherit her properties. The sons of the plaintiffs and the defendants 3 and 4 have been jointly running a Milk Dairy in the 'A' scheduled property. Subsequently, bad blood started running in the relationship of the plaintiffs and the defendants. Hence the suit for partition of 'A' and 'B' scheduled properties into equal shares and for allotting one share to the plaintiffs.
3. Denying and refuting, challenging and impugning, the allegations/averments in the plaint, the defendants filed the written statement, the gist and kernel of them would run thus:
Thirumalai Ammal's husband was Kandasamy Pillai, whose maternal uncle was Subbiah Pillai, who was living in unmarried state under the care and custody of Kandasamy Pillai. While so, Kandasamy Pillai purchased an extent of 25.18 acres including the 'A' scheduled property in the name of Subbiah Pillai during the year 1917. Out of the total extent of 25.18 acres, an extent of 2.06 acres was acquired by the Railway Department and the remaining extent of 23.12 acres was in possession of Kandasamy Pillai, who enjoyed it as absolute owner and died in the year 1933 leaving behind his widow, the said Thirumalai Ammal @ Seethammal and their only son Thiruvenkadam Pillai. After the death of Kandasamy Pillai, the said property devolved upon Thiruvenkadam Pillai and his only son Govindaraju Pillai. It so happened that after the death of Kandasamy Pillai, Thiruvenkadam Pillai and his son Govindaraju Pillai along with Thirumalai Ammal, the widow of Kandasamy Pillai, mortgaged the entire extent of 23.12 acres of land during the year 1933. Even though Subbiah Pillai was alive at that time, he never laid any claim over the said property.
4. On 25.11.1935, the same set of people sold an extent of 11.46 acres to third parties and Subbiah Pillai was a consenting party to the said sale as he signed as a witness. The said Thiruvenkadam Pillai and his son Govindaraju Pillai, enjoyed the suit property jointly in their capacity as equal owners till Thiruvenkadam Pillai died in the year 1963. As such, the allegations to the contrary in the plaint are false. Thiruvenkadam Pillai never treated the 'A' scheduled property as his self acquired property, but he had thrown it into the Hindu hotchpot and Thiruvenkadam Pillai and his son Govindaraju Pillai (D1) became co-parceners, entitled to equal shares in the joint family property. Thiruvenkadam Pillai, on 01.02.1963, executed a registered Will bequeathing his share in the suit properties in favour of defendants 2 and 3 and under the same Will, he also bequeathed his share in the Companies to Booshanambal, the first plaintiff, and her daughter Devi and grand daughters Sumathi and Premavathi. The said Will was acted upon and under that Will, the first plaintiff and her descendants derived benefits also. The first plaintiff and her husband Narayana Swamy approached D1 during the year 1970 for help and hence they were allowed to occupy a portion of the 'B' scheduled property as permissive occupiers out of mere sympathy. Accordingly, they prayed for dismissal of the suit. Over and above such prayer for dismissal, the defendants also prayed for the following reliefs as counter claim:
"(a) directing the plaintiffs and their family to clear out of the suit property on or before a date to be fixed by this Hon'ble Court, failing which to clear them out by a decree of mandatory injunction;
(b) directing the plaintiffs those squatting on the property to pay damages as fixed by this Hon'ble Court from 01.12.2004 until they clear out of the suit property to 2nd defendant;
(c) directing the plaintiffs to pay the defendants the costs of this suit."
(extracted as such)
5. The plaintiffs filed the reply statement denying and refuting the averments/allegations in the written statement as well as in the counter claim. The plaintiffs also denied the very genuineness of the Will allegedly executed by Thiruvenkadam Pillai. The plaintiffs never admitted that they are only permissive occupiers or gratuitous occupiers of the 'B' scheduled property. Accordingly, they prayed for dismissal of the counter claim.
6. The defendants filed rejoinder, denying and refuting the contentions of the plaintiffs in the reply statement. Both sides also pleaded limitation as against the claim of each other.
7. The trial Court framed the issues. During trial, on the side of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A1 to A27 were marked. On the side of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B48 were marked.
8. Ultimately the trial Court dismissed the suit of the plaintiffs, but partly decreed the counter claim of the defendants by granting mandatory injunction as against the plaintiffs, to vacate the 'B' scheduled property within a period of one year.
9. Challenging and impugning the dismissal of the plaintiffs' claim and also the granting of the relief mandatory injunction in favour of the defendants, the plaintiffs, filed this appeal on various grounds, inter alia thus:
The trial Court fell into error in dismissing the suit of the plaintiffs and in granting the relief in favour of the defendants. Without considering the oral and documentary evidence, the trial Court simply decided the matter. The trial Court failed to hold that Ex.B46, the Will was not proved. Even as per the defendants' case, on the death of Thiruvenkadam Pillai, the first plaintiff, Booshanambal and D1, Govindaraju Pillai, inherited the 'A' and 'B' scheduled properties and each of them were entitled to half share and the trial Court should not have dismissed the suit. The factum of jointly running a Dairy Farm in the 'A' scheduled property as put forth before the trial Court was not considered by it. Ex.A19, the lease deed executed in favour of Subbiah Pillai would disprove the case of the defendants' theory.
10. Even assuming Ex.B46 is the genuine Will, as per the said Will, Thiruvenkadam Pillai bequeathed only his undivided half share in the suit 'A' and 'B' scheduled properties and he retained the remaining half share with him and on his death, the first plaintiff, Booshanambal and D1, Govindaraju Pillai should be taken as the ones inherited the same and accordingly, if viewed, the plaintiffs would be entitled to 1/4th share in the 'A' and 'B' scheduled properties. However, Ex.B46 is not a genuine Will as it purported to have emerged on 01.02.1963, whereas, Thiruvenkadam Pillai died on 04.02.1963 within 72 hours of the emergence of the Will. Hence in such a case, it cannot be taken that Thiruvenkadam Pillai at the time of executing the said Will was in a sound state of mind. The oral evidence of P.Ws.1 to 3 and Exs.A2 to 18 and A24 to A26 would clearly demonstrate and display that the first plaintiff, Booshanambal was exercising her right over the 'A' scheduled property along with her sons. The oral and documentary evidence also proved that the first plaintiff along with her family was residing in the 'B' scheduled property even long prior to 1970. Accordingly, the appellants/plaintiffs pray for setting aside the judgment of the lower Court and for decreeing the suit for partition and for dismissing the counter claim.
11. Heard both sides.
12. The parties are referred to hereunder according to their litigative status before the lower Court.
13. The points for consideration are as follows:
(1) Whether Thirumalai Ammal was the absolute owner of the 'A' and 'B' scheduled properties as pleaded by the plaintiffs and if so, in what capacity the plaintiffs claim half share in those suit properties?
(2) Whether there was joint family existed among Thiruvenkadam Pillai and Govindaraju Pillai (D1) and whether the suit properties happened to be the joint family properties?
(3) Whether the Will, Ex.B46 was proved to be a genuine Will by the defendants?
(4) Whether the plaintiffs are only permissive occupiers in the 'B' scheduled property?
(5) Whether the plaintiffs are entitled to half share in the suit property and accordingly for a preliminary decree for partition?
(6) Whether the defendants are entitled for mandatory injunction as prayed by them?
(7) Whether there is any infirmity in the judgment and decree of the trial Court?
(8) To what relief?
POINT NOS.1 AND 2:
These two points are taken together for discussion, as they are inter-linked and inter-woven with each other.
14. The epitome and the long and short of the contention of the rival parties could be set out thus:
The relationship among the parties is an admitted one. The plaintiffs would try to project the case as though the 'A' and 'B' scheduled properties originally belonged to Thirumalai Ammal, who got it from her paternal side and consequently, she is entitled to the property. Whereas, the defendants would contend that Kandasamy Pillai, the husband of Thirumalai Ammal was the absolute owner of the suit property and consequent upon his death, it devolved upon Thiruvenkadam Pillai and his son Govindaraju Pillai (D1), as they constituted a Hindu joint family and accordingly entitled to half share each and that even the half share of Thiruvenkadam Pillai was given to D1's descendants by virtue of the Will. Accordingly, the defendants would try to deprive the plaintiffs of any share in the suit properties.
15. At the first instance, it is just and necessary to analyse as to whether the contention of the plaintiffs that Thirumalai Ammal happened to be the absolute owner of the suit properties is true. The genealogy as found set out in the plaint is obviously a truncated one. However, it is set out hereunder:
GENEALOGY Thirumalaiammal W/o Kandasamy Pillai Thiruvenkadampillai T.Govindarau Pillai(D1) Boosanambal (died) Plaintiff P.T.Rajan @ Kandasamy @ T.G.Shanmuga Sundaram Ponnambala Panner Selvam (D3) (D4) Thiakarajan(D2)
16. Whereas in the written statement the defendants set out an elaborate genealogy, which is also set out hereunder:
Arangaswamy Pillai Lakshmanan Pillai Subbiah Pillai Nagammal Meenakshi Papamal (no issues) (no issues) (no issues) Govindaswami (Husband) Two sons and 4 daughters Kandaswami Pillai including Thirumalai Ammal @ Thirumalai Ammal @ Seethammal Seethammal Thiruvenkadam Pillai Govindaraju Pillai Booshanambal D1 (1st plaintiff) 3 sons (D2 to D4) and 4 Daughters (Plaintiffs 2 to 10)
17. A mere reading of those two genealogies coupled with the oral evidence and documentary evidence available would exemplify that both groups tried their level best to gain advantage to the disadvantage of the other by interpreting the inheritance as per their respective genealogies. During trial, ultimately it got boiled down to the following facts that Subbiah Pillai happened to be the son of Arangaswamy Pillai. Subbiah Pillai had one brother by name Lakshmanan Pillai. The said Subbiah Pillai also had three sisters, out of those three sisters, one sister Meenakshi had his son by name the said Kandaswamy Pillai, the husband of Thirumalai Ammal. As such, so far Kandaswamy Pillai is concerned, Subbiah Pillai happened to be his maternal uncle. In the plaint there is no whisper as in what way Thirumalai Ammal @ Seethammal could claim herself as the legal heir of said Subbiah Pillai. There is also no indication in the plaint that Subbiah Pillai was the original owner of the suit property by virtue of Ex.B1, the sale deed dated 17.07.1917. However, it is the contention of the defendants that the said Kandaswamy Pillai purchased the 'A' scheduled suit property along with other properties in the name of his paternal uncle Subbiah Pillai as per Ex.B1. As per the genealogy furnished by the defendants, Thirumalai Ammal happened to be the daughter of Lakshmanan Pillai, the brother of said Subbiah Pillai. As such, there is no rhyme or reason on the part of the plaintiffs in claiming that the said Thirumalai Ammal is the absolute owner of the said 'A' scheduled property through her paternal side.
18. However the plaintiffs would submit that as per patta, Ex.P.9, the 'A' scheduled property was treated as the absolute property of Thirumalai Ammal and accordingly the plaintiffs would develop their case that after the death of Thirumalai Ammal, her two children, namely D1, Govindaraju Pillai and the first plaintiff Booshanambal, were entitled to half share and accordingly the plaintiffs claim half share.
19. At this juncture, the learned Senior Counsel for the defendants would develop his argument to the effect that once it is found that the plaintiffs have not come forward with the true facts and details, it is not open for the plaintiffs to cull out facts from the defendants' side evidence and try to get a decree for partition; depending upon the facts set out in the plaint alone, the defendants could take defensive stand in the written statement and as such, this Court once comes to the conclusion that the plaintiffs have not come forward with the whole truth, then the suit has to be dismissed. However, I would like to highlight that such an argument cannot be countenanced. In a suit for partition, admittedly among relatives, simply because the contention of the plaintiffs based on certain facts cannot be granted, but reliefs could be granted by the Court to certain extent on some other grounds, taking into account the over all and the totality of the evidence available.
20. It is a common or garden principle of law that in a partition suit, the plaintiff is the defendant and the defendant the plaintiff. However, the learned Senior Counsel for the defendants would submit that if at all the defendants admit that the plaintiffs are entitled to some share, then the question of applying the said theory would arise. Once again, I would like to express my view that such an argument put forth on the defendants' side could not be countenanced for the reason that in a partition suit, the plaintiffs cannot expect the defendants to admit their claim. Still the partition suit would continue to be a partition suit only and all the attributes of a partition suit would be applicable.
21. It is therefore clear that the contention on the plaintiffs' side that Thirumalai Ammal happened to be the absolute owner of the suit properties, because she inherited the property from her paternal side is not at all fortified by either oral or documentary evidence. But even the very narration of the case on the plaintiffs' side coupled with the narration of the defendants' side would display and disclose, that Thirumalai Ammal @ Seethammal was enjoying the suit properties along with her husband Kandaswamy Pillai, who also happened to be the descendant of the common ancestor. As per the version on the defendants' side, Kandaswamy Pillai can never be taken as the legal heir or descendant of Subbiah Pillai, as Subbiah Pillai admittedly happened to be the maternal uncle of Kandaswamy Pillai. No doubt it is not the defendants' case that Kandaswamy Pillai claimed title over the 'A' scheduled property on the ground that he was the legal heir of Subbiah Pillai, but the defendants would claim that Kandaswamy Pillai purchased from out of his own sources, the 'A' scheduled property as per Ex.B1 in the name of Subbiah Pillai. As such, the onus of proof is on them to prove that Kandaswamy Pillai happened to be the original owner of the 'A' scheduled property as his self acquired property.
22. It is worthwhile to point out that neither of the parties tried to press into service the Benami Transaction (Prohibition) Act, 1988 and also about the concepts retrospective and retroactive operations.
23. Be that as it may, the defendants should prove that Kandaswamy Pillai purchased the property in the name of Subbiah Pillai as per Ex.B1. The recitals in Ex.B1, the certified copy of the sale deed dated 17th July 1917 would evince and evidence that the said Subbiah Pillai purchased the 'A' scheduled property along with other items by paying a cash consideration of Rs.5,000/-. As such, absolutely there is no indication in the recitals of Ex.B1 that there is any semblance of Benami Transaction.
24. It is quite obvious that Ex.B1 emerged during the year 1917 and as correctly pointed out by the learned counsel for the plaintiffs, during the trial, none of the witnesses examined on the defendants' side could be construed as competent to speak about the alleged Benami transaction, as the transaction took place in the year 1917. As such, in the absence of any clinching evidence relating to Benami Transaction, it has to be seen as to whether from the other available evidence any such inference could be drawn relating to Benami. The learned counsel for the plaintiffs would place reliance on Ex.A19, the certified copy of the registered lease deed dated 15th February 1923 executed by one Kandaswamy Pillai S/o Ponniapillai relating to the 'A' scheduled property in favour of Subbiah Pillai. If really Kandaswamy Pillai purchased the 'A' scheduled property in the name of Subbiah Pillai, certainly Ex.A19 during the year 1923 would not have emerged in favour of Subbiah Pillai and as such, I could see considerable force in the argument put forth on the side of the plaintiffs that the theory of Benami as set forth on the side of the defendants is nothing but an untenable plea dished out for the purpose of this case.
25. The learned Senior Counsel for the defendants would place reliance on Ex.B3, the certified copy of the mortgage deed executed by Thiruvenkadam Pillai, Govindaraju Pillai (D1) and Thirumalai Ammal @ Seethammal in favour of a third party mortgaging the 'A' scheduled property and develop his argument that even during the life time of Subbiah Pillai, the said Thiruvenkadam Pillai, son of Kandaswamy Pillai along with others mortgaged the 'A' scheduled property and that would connote and denote, exemplify and expatiate that the 'A' scheduled property happened to be the exclusive property of Kandaswamy Pillai which came into the hands of his son Thiruvenkadam Pillai and Thiruvenkadam Pillai's son Govindaraju Pillai and that Thirumalai Ammal was added only as a formal party in that mortgage deed.
26. Whereas, by way of torpedoing and pulverising the argument as put forth on the side of the defendants, the learned counsel for the plaintiffs would advance and fatten up his argument to the effect that Subbiah Pillai died even in the year 1930; there is no indication that Subbiah Pillai was alive as on the date of emergence of Ex.B3; if really Kandaswamy Pillai happened to be the absolute owner and it allegedly devolved upon Thiruvenkadam Pillai and his son D1, then there would not have been no necessity for adding Thirumalai Ammal also as one of the parties in the Ex.B3; the reference to one Subbiah as witness in Ex.B2, the sale deed dated 25th November 1935 is not proved to be the said Subbiah, the original owner as contemplated in Ex.B1 and as such the argument as put forth on the side of the defendants is not tenable.
27. Whereas, the learned Senior Counsel for the defendants would submit that Ex.B2, the certified copy of the sale deed dated 25th November 1935 would reveal and convey that the said Thiruvenkadam Pillai, D1/ Govindaraju Pillai and Thirumalai Ammal @ Seethammal executed the sale deed alienating part of the property covered under Ex.B1 and that shows that Subbiah was not the owner and that Subbiah also signed as a witness in the deed.
28. When this Court put a question to the defendants' side as to how they would be justified in contending that the reference made to one Subbiah as witness in Ex.B2, refers actually to the said Subbiah, the original owner contemplated in Ex.B1, no plausible answer was forthcoming. As such, on the one hand the plaintiffs would contend that Subbiah Pillai died even in the year 1930 and thereafter alone Exs.B2 to B4 emerged. Whereas, the contention of the defendants is that even during the life time of Subbiah Pillai, those exhibits emerged and that Subbiah Pillai never objected to any such transaction and thereby, he signified and agreed to the fact that he was only a name lender in Ex.B1.
29. The onus of proof is on the defendants to prove the Benami nature of the transaction involved in Ex.B1. But my discussion supra would indicate and exemplify that absolutely there is no shred or shard, iota or molecular extent of evidence to establish and prove that the property was purchased by Kandaswamy Pillai in the name of Subbiah Pillai. There should atleast be some explanation as to what actuated and accentuated, propelled and impelled Kandaswamy Pillai to purchase such vast extent of property in the name of his maternal uncle, who was older than him admittedly. Normally whenever some benami transaction takes place, there would be some hidden reason or some reason behind it. Here, absolutely there is no plausible reason found detailed and delineated before the Court as to why Kandaswamy Pillai should purchase the property in the name of Subbiah Pillai who had no issues. Furthermore, benami nature of the transaction cannot be presumed also. Here Ex.P19 would torpedo the very plea of benami as put forth on the side of the defendants for the reason that if really Kandaswamy Pillai was the real owner, Subbiah Pillai would have acted during the life time of Kandaswamy Pillai as owner over the 'A' scheduled property and the other related properties in his capacity as the absolute owner of it. According to the defendants, Kandaswamy Pillai died in the year 1933 and during his life time he never exercised his right as absolute owner of the 'A' scheduled properties. Exs.B2 to B4 all emerged only after the death of Kandaswamy Pillai. However, during the lifetime of Kandaswamy Pillai, one vital document Ex.A19 emerged, but that was not in the name of Kandaswamy Pillai, but in favour of Subbiah Pillai, the original owner of the 'A' scheduled property as found mentioned in Ex.B1. As such, the theory of Benami is nothing but an untenable plea dished out for the purpose of this case.
30. The issues framed by the trial Court, are far from satisfactory, as the trial Court framed five issues, but those five issues are generally worded. However, both parties understanding the actual dispute between them, adduced evidence and even before the trial Court, none of them raised any grievance relating to framing of issues.
31. At this juncture, it is worthwhile to scrutinise the recitals in Exs.B1, B3 and B5 in the chronological order with reference to the date of their respective emergence. Accordingly if viewed, Ex.B3 is the first document which emerged after the death of Kandaswamy Pillai. It is the certified copy of the mortgage deed dated 5th April 1933 executed by Thiruvenkadam Pillai, Govindaraju Pillai (D1) and Thirumalai Ammal in respect of the property referred to in Ex.B1 mortgaging in favour of a third party. The recitals in it would refer to the sale deed Ex.B1 in the name of Subbiah Pillai. However the executants would claim that the property had been in their possession and enjoyment ever since the date of purchase as per Ex.B1 dated 17.07.1977, but Ex.P19 would torpedo such a claim for the reasons already set out supra. Had really Subbiah Pillai was alive at the time of emergence of Ex.B3, the mortgagee would have insisted for Subbiah Pillai's signature as a consenting party as Ex.B1 would refer to Subbiah Pillai as owner.
32. Ex.B2 is the certified copy of the sale deed dated 25th November 1935, executed by the same set of executants in respect of the property referred to in the sale deed Ex.B1, transferring a portion of it. However, the recitals would not refer to Ex.B1, but they would claim as though the subject matter of Ex.B2 was acquired by their own self acquisition. In Ex.B2, at sheet No.4, one name Subbiah Pillai is found recited without any specification about his father's name. Had really been Subbiah Pillai alive at that time and he had no objection for those executants to exercise their right of alienation as their own property, certainly he would have signified his consent in the same Ex.B2 and the executants also could have added him as one among the executants by incorporating appropriate recitals. In Ex.B3 which emerged earlier to Ex.B2, there is reference to Ex.B1, but in Ex.B2, there is no such reference to Ex.B1. Ex.B4 is the original mortgage deed dated 5th December 1935 executed by the same set of executants in respect of the property referred to in Ex.B1. The recitals therein would reveal on par with the recitals in Ex.B2 and there is no reference to Ex.B1.
33. It is a trite proposition of law that preponderance of probabilities would govern adjudication in civil cases. Had really Subbiah Pillai was alive, certainly the parties in favour of whom Exs.B2 to B4 emerged would have in all probabilities demanded for Subbiah Pillai signing those deeds as the consenting party, because Ex.B1 is standing in the name of Subbiah Pillai only and Ex.B19 also is in favour of Subbiah Pillai. The persons in favour of whom Exs.B2 to B4 executed would have very well verified it also in the Registrar Office about Exs.B1 and B19 and since those persons were satisfied that Subbiah Pillai was not alive and that Thiruvenkadam Pillai, Govindaraju Pillai and Thirumalai Ammal are in joint possession of those properties referred to in those deeds Exs.B2 to B4, they never insisted for Subbiah PIllai to be one of the executants or consenting party in those deeds. In such a case, the contention of the plaintiffs that Subbiah Pillai died even in the year 1930 is well founded and the contention of the defendants that Subbiah Pillai died in the year 1938 is not borne by any records and the documentary evidence as well as the circumstances highlighted supra are speaking against the contention of the defendants relating to the year in which Subbiah Pillai died. The very fact that those three executants, namely Thirumalai Ammal, Govindaraju Pillai and Thiruvenkadam Pillai all joined together and executed as many as three deeds admittedly after the death of Kandaswamy Pillai would speak volumes to the fact that Kandasamy Pillai and Thirumalai Ammal @ Seethammal were in joint possession of the suit properties and after Kandasamy Pillai's death, those three persons continued to enjoy the suit properties and executed those three deeds referred to supra.
34. At this juncture, I would like to point out that both the plaintiffs and the defendants failed to substantiate their respective pleas relating to the manner in which the suit property came into their hands. However, the analysis of evidence supra would clearly establish and indicate that the suit properties came into the possession and enjoyment of Kandaswamy Pillai and his wife Thirumalai Ammal @ Seethammal. Ex.A9 is the kist receipt book standing in the name of Thirumalai Ammal.
35. The learned Senior Counsel for the defendants would point out that Ex.A9 is not a patta pass book or patta and it only refers to the kist receipts. No doubt, a mere perusal of Ex.A9 would evince and disclose that it is nomenclatured "fp!;J urPJ g[j;jfk;", which means kist receipt book. However, the real purport of it should be seen. Such kist receipt book was issued to pattadar, namely Thirumalai Ammal and the patta number found mentioned therein is 17, which tallies with the patta relating to the 'A' scheduled property. This Ex.A9 was issued in the name of Thirumalai Ammal during the year 1946, as the endorsements therein would start from 01.06.1946 onwards. In other words, after the emergence of Exs.B2 to B4 during the 1930's, Ex.A9 emerged. Even in the year 1933 and 1935, so to say, the years in which Exs.B2, B3 and B5 emerged, the executants therein including Thirumalai Ammal agreed that those properties belonged to them collectively. My discussion supra also would indicate and point out that there is nothing to establish that Thirumalai Ammal alone inherited the property from Subbiah Pillai or from her paternal ancestors. Hence in such a case, it has to be taken that Thirumalai Ammal, the wife of Kandaswamy Pillai and Kandaswamy Pillai enjoyed it jointly and as their own property and after the death of Kandaswamy Pillai, in the year 1933, Kandaswamy Pillai's wife Thirumalai Ammal and her son Thiruvenkadam Pillai and his son Govindaraju Pillai, all jointly enjoyed it.
36. At this stage, the Hindu law has to be applied. Kandawsamy Pillai died in the year 1933 leaving behind his son Thiruvenkadam Pillai and Thiruvenkadam Pillai's son Govindaraju Pillai (D1). Wherefore, Thiruvenkadam Pillai and Govindaraju Pillai could certainly be construed as co-parceners relating to the property under the joint enjoyment of Kandaswamy Pillai and Thirumalai Ammal @ Seethammal. It is quite obvious that during the year 1930's, female members had no title over the immovable properties and they had only right for their maintenance and also for enjoyment to the limited extent. The fact remains that the first plaintiff is admittedly the daughter of Thiruvenkadam Pillai, so to say the sister of D1, Govindaraju Pillai. It is also a trite proposition that the first plaintiff by her birth cannot be treated as a co-parcener during 1930's and it is quite obvious. Kandasawmy Pillai died in the year 1933 and at that time, Booshanambal and Govindaraju Pillai (D1) were children and Booshanambal, the first plaintiff was the elder sister of D1 and it is quite clear from Exs.B2 to B4 that Booshanambal was not added as a party even though Govindaraju Pillai (D1) was added as one of the parties, represented by Thiruvenkadam Pillai. As such it could legally be taken that on the death of Kandaswamy Pillai, Thiruvenkadam Pillai and his son D1/Govindaraju Pillai constituted the joint family, so to say in this factual matrix it could be termed as co-parcenary and they happened to be the co-parceners entitled to half share each in the suit properties in entirety. Thirumalai Ammal figured in Exs.B2 to B4, because she happened to be the widow of Kandaswamy Pillai and she also never claimed exclusive right in those deeds to the exclusion of Thiruvenkadam Pillai and Govindaraju Pillai.
37. The same logic applied for holding the 'A' scheduled property as the joint family property of Thiruvenkadam Pillai and Govindaraju Pillai would also be applicable to the 'B' scheduled property. So far 'B' scheduled property is concerned, neither the plaintiffs nor the defendants, referred to in any title deed, but the fact remains that the same couple Thirumalai Ammal and Kandaswamy Pillai happened to be in possession and enjoyment of the same and after the death of Kandaswamy Pillai, his son Thiruvenkadam Pillai and his son D1/Govindaraju Pillai, along with the widow of Kandasamy Pillai, namely Thirumalai Ammal enjoyed the property. After the death of Thirumalai Ammal, Ex.B20, the registered mortgage deed dated 10th December 1953 executed by the said Thiruvenkadam Pillai and D1, Govindaraju Pillai mortgaging the 'B' scheduled property emerged. Ex.B21 is also another registered mortgage deed executed by Thiruvenkadam Pillai and his son D1 in respect of the 'B' scheduled property that would establish and disclose that they are the co-owners of the 'B' scheduled property.
38. In this view of the matter, the names found in revenue records, house tax receipts and various other receipts referred to by both sides lose their significance and such evidence could be termed as pococurante ones which cannot be bed rock for deciding a serious partition suit concerning valuable right of parties. A partition suit should be decided on sound basis and solid evidence, and not on flimsy evidence. Trite the law is that mere payment of tax or kist or names found in water tax receipts, electricity consumption receipts would not confer title. However, that would only help to understand that at the relevant point of time the person concerned in whose name the receipts stand or patta stands, were in possession and even that is a rebuttable presumption. At this juncture, my mind is redolent and reminiscent of the decision reported in 1998(1) CTC 630 [Srinivasan and six others vs. Sri Madhyarjuneswaraswami, Pattaviathalai, Tiruchirapally District by its Executive Officer at Pettavaithalai Devasthanam and five others], an excerpt from it would run thus:
"The Supreme Court in the decision reported in State of Tamil Nadu Vs. Ramalinga Swamigal Madam, AIR 1986 SC 794 observed that the powers of the statutory authority constituted under the Act are exercised in a summary manner and the claims of occupants comes to be determined only incidentally and they cannot be equated with the Civil Courts in respect of what they could do or the nature of relief that they could grant. A careful analysis of the scheme underlying these abolition laws would go to show that the vesting on abolition under everyone of these legislations are subject to the pre-existing rights of the occupants, except in respect of what are known as public or communal properties, meant for common use and the grant of patta has been always considered and held to be in recognition of their pre-existing rights. The provisions relating to abolition and vesting of the properties do not have the effect of obliterating or destroying such pre-existing rights, if any, except in respect of public or communal properties and the rights which inhere are the basis and fundamental rights which entitle a person to preferentially get patta under these legislations and the same could not be equated to the grant of patta by way of assignment under the Revenue Standing Orders or under rules of assignment outside the scope of the statutory enactments. Similarly, a meticulous analysis of the scheme underlying the provisions of the Act dealing with the nature of rights dealt with by the various authorities, the manner in which such authorities adjudicate such rights and the consequences of such adjudication, disclose that they do not mean and even intended to be a substitute or alternate mode of resolution of the ordinary civil right of a citizen or for that matter persons asserting competing claim, in their attempt to project a claim for patta. Consequently, in our view, the ratio of the decisions of the Apex Court reported in State of Tamil Nadu Vs. Ramalinga Swamigal Madam, AIR 1986 SC 794, R.Manicka Naicker Vs. E.Elumalai Naicker, 1995 (4) SCC 156 and Sayyed Ali Vs. A.P.Wakf Board, Hyderabad, 1998(2) SCC 642 and that of a Division Bench of this Court in Ramanujam Kavirayar, T.K. Vs. Sri-La-Sri Sivaprakasa Pandara Sannathi Avargal, 1988 (2) L.W. 513 and of a learned single Judge of this Court in Samsuddin Rowther and another Vs. Avvammal and 2 Others, 1992 (1) L.W. 207 would squarely apply and govern the case and consequently, it has to be necessarily held that the jurisdiction of the Civil Courts cannot be held to have been completely ousted or barred at any rate in respect of adjudication of claims of title and questions or issues which are not obliged or required to be adjudicated for the purposes of enforcement of these laws which has, as their objection and aim, to implement ryotwari settlement in the areas governed by them.
39. Accordingly if viewed, Ex.A2, Property tax receipts for the year 1995 to 2006, Ex.A3, Property tax receipts, Ex.A4, Electricity bill receipts for the year 2004 to 2006, Ex.A5, Water tax receipt in the name of Thiruvenkadam, Ex.A6, Property tax demand notice, Ex.A10, Receipt in the name of Murali by Kamadenu Traders, Ex.A13, property tax receipt in the name of Govindaraj, Ex.A14, Electricity receipt in the name of Thiruvenkadam Pillai, Ex.A16, Insurance policy, Ex.A18, Identity card, Exs.A24 and A25, Telephone bills, Ex.A26, Property tax receipt in the name of Govindaraj, would not in any way conclusively be pressed into service in favour of the plaintiffs' plea. Similarly Ex.B6, Notice of Deputy Inspector, Surveyor Office, Pollachi issued in the name of Govindaraju Pillai, Exs.B7 and B9, Tax receipts in the name of Govindaraju Pillai, Ex.B12, Property tax receipts in the name of Panneerselvam and Govindaraj, Ex.B13, Water tax receipts in the name of Govindaraj, Exs.B14 to B16, Water tax receipts in the name of Kandasamy Pillai, Ex.B17, Patta register extract, Exs.B18 and B19, Property tax receipts in the name of Thiruvengadam Pillai. Ex.B22, Property tax receipt in the name of Govindaraju, Ex.B23, property tax demand notice in the name of Govindaraj Pillai, Ex.B24, Property tax receipts in the name of Govindaraj Pillai, Exs.B29 to Ex.B33, Property tax demand notices in the name of Govindaraj Pillai, Ex.B35, Licence in the name of Govindaraj issued by Pollachi Municipality, Ex.B37, Proceedings of Pollachi Municipality, Ex.B38, Order of Pollachi Municipality, Ex.B39, Property tax receipt in the name of Ponnambala Thyagarajan, Ex.B40, Patta pass book in the name of Govindaraja Pillai and Ex.B41, Japthi notice by Pollachi Municipality in the name of Govindaraj, all those exhibits cannot be relied on by the plaintiffs to canvass their case in any manner, in view of the solid facts found exemplified in the course of my discussion supra. The valuable right of a co-sharer cannot be deprived merely on showing some tax receipts or patta.
40. At this juncture, I would also refer to the decision of the Hon'ble Apex Court with reference to Prescriptive title reported in (2007) 6 SCC 59 (P.T.Munichikkanna Reddy and others vs. Revamma and others).
"10. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v.Graham made the following reference:
"Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the Courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol".
11. This brings us to the issue of mental element in adverse possession cases intention.
...................
14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.
18. On intention, Powell v.McFarlane is quite illustrative and categorical, holding in the following terms:
"If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')"
*** *** If his acts are open to more than one interpretation and he has not made in perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
* * * In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.
* * * What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow".
41. A plain reading of it would show that merely by pointing out that a particular individual is in possession of certain property for a long time, he cannot plead that he acquired prescriptive title over it and in the case of co-sharers, it is all the more important that mere possession by one co-sharer of a joint immovable property would not lead to the inference that the right of co-ownership of the co-owner has been ousted. Ex.A27 is the partition deed dated 21st February 1975 which emerged on the defendants' side, and in view of my discussion supra, it is having no probative force of its own. Exs.A10 to A12 are relied on by the plaintiffs to disclose and divulge that even in respect of 'A' schedule property, the plaintiffs and the defendants were in joint enjoyment, as the children of D1 and P1 jointly conducted Dairy Farm.
42. Whereas, D.W.1 would try to explain and expound unsatisfactorily that even though some documents emerged in that manner as projected by the plaintiffs in the name of some of the plaintiffs, yet there were no joint possession over 'A' scheduled property. While cross examining D.W.1, it was suggested to him that the said Dairy Farm was jointly run by the descendants of P1 and D1 in one of the line of houses in 'A' schedule property. In fact, D.W.1(D1) would state that even though the receipts relating to the Dairy Farm, are in the name of P.W.1, he would try to unsuccessfuly explain as though the money was given by P1's son and P.W.1 got it in his name. To the risk of repetition and pleonasm, but without being tautologous, I would highlight that all these sort of minor evidence die down in oblivion in view of my finding on solid basis relating to the origin of the property and how it got devolved and also relating to the settled law point that one sharer cannot oust the right of another co-sharer on flimsy grounds.
43. It is therefore crystal clear that Thiruvenkadam Pillai and Govindaraju Pillai constituted the co-parcenery and each were entitled to half share in both the 'A' and 'B' scheduled properties.
Accordingly, point No.1 is decided to the effect that Thirumalali Ammal was not the absolute owner of the 'A' and 'B' scheduled properties as pleaded by the plaintiffs and point No.2 is decided to the effect that there was joint family existed among Thiruvenkadam Pillai and Govindaraj Pillai and the suit property happened to be the joint family properties.
The question arises as to whether Thiruvenkadam Pillai validly executed the Will Ex.B46, is being dealt with infra.
POINT NO.3:
44. Ex.B46 is the original registered sale deed dated 1st February 1963, which is relied on by the defendants who happened to be the propounders of the Will. The learned Senior Counsel for the defendants would submit that the said Will is an ancient Will as it is more than thirty years old and in such a case, its due execution should be presumed and over and above that, in view of the fact that the attestors died, the descendants of executants of the Will identified the signatures of the testator, namely Thiruvenkadam Pillai and the signature of the attesting witness was also proved through D.Ws.2 and 3. Whereas, the learned Senior Counsel for the defendants would submit that Ex.B47 is a dubious Will and it has not been proved in the way known to law. The analysis of evidence relating to Ex.B46 is of paramount importance in the facts and circumstances of this case. D.W.1 (D1) in his chief examination affidavit would aver that his father Thiruvenkadam Pillai bequeathed his half share in the 'A' and 'B' scheduled properties in favour of the said beneficiaries and under the same Will, he also bequeathed his share in Companies which was utilised by P1 and her descendants.
45. The learned counsel for the plaintiffs would submit that absolutely there is nothing to show that as per the said Will, the plaintiffs were bound by utilising the shares of the deceased Thiruvenkadam Pillai in the Companies and those are all non-existent shares and the said Will is bad on that ground also. A perusal of the judgment of the lower Court would demonstrate that there was no finding by the lower Court that P1 or her descendants as beneficiaries utilised those alleged shares. When the plaintiffs, clearly challenged the very genuineness of the Will and also recitals contained therein, it is for the propounder of the Will to produce evidence that the Will was acted upon and that the plaintiffs accepted the same. But absolutely there is no evidence in that regard.
46. The contention on the defendants' side is that since the testator could not move to the Registrar Office, the Registrar himself was summoned to the house and there, the Will was executed. A perusal of Ex.B46 would show that the said deed was purported to have been signed by the testator Thiruvenkadam Pillai in English. But as correctly pointed out by the learned counsel for the plaintiffs, the signatures are shaky and in the sheet No.1 at the lower portion, the signature is found to be shaky and over writings are there in the signature itself. Further more, insertions could be seen just above the signature also and it connotes as though after the emergence of the signature, those lines were interpolated. In the second sheet, similarly the signature is shaky and the last line in that sheet and the signature are overlapping and the sentences were found written with sufficient gap which are not found to be in that manner in the first sheet. Similarly in the third sheet, the signature is shaky and there are over lappings in the signature itself. In the fourth sheet also the signature is similarly shaky. The Will is purported to have been written on 1st February 1963 and registered on 2nd February 1963, but the testator himself died on 04.02.1963, so to say within a very short span of time axiomatically.
47. As such the learned counsel for the plaintiffs appropriately and appositely, correctly and convincingly put forth the facts that the propounder of the Will has not proved that the testator was in sound state of mind to execute the Will. In the back side of the first sheet pertaining to registration, the purported signature of the testator is found in two places and a mere look at it would display and exemplify as to what must have been the state of health of the signatory. The man who was not in full control of his mind must have put the signature in such a manner. The trial Court barely placing reliance on the depositions of P.Ws.2 and 3, the deceased witnesses' respective sons, simply jumped to the conclusion as though the Will was proved. In fact, D.W.1 himself was not a witness to the Will, but he would even state that subsequently the attesting witnesses told him about it and he expressed his happiness over it. It is the contention of the defendants that the Registrar was summoned to the house and the Will was presented for registration. If that be so, then there should be proper compliance with Chapter IX of the Tamil Nadu Registration Rules.
48. At this juncture, I would like to refer to Chapter IX of the Tamil Nadu Registration Rules. The relevant provisions are extracted hereunder for ready reference:
38. An application for attendance at a private residence shall be his writing and shall, in all possible cases, be signed by the person on whose behalf attendance is required. It need not be stamped.
39. A requisition for attendance at a private residence shall be complied with as early as possible. If compliance would interfere with the regular business of the office or involve the closing of the office and if the case does not fall under the proviso to section 31 of the Act, a commission should, if practicable, be issued. Every such attendance by a Sub Registrar or under his orders shall be reported to the Registrar within 24 hours."
49. When I raised a query as to whether chapter IX of the Tamil Nadu Registration Rules were complied with, actually there is no plausible answer from the defendants' side. On the back of the first sheet of Ex.B46, the Will, it is found recorded thus:
"1963 tUlk; gpg;uthp khjk; 2 njjp gfy; 9/10 kzpfSf;fpilapy; Cj;Jf;Fspf;Fr; nrh;e;j K:f;fug;gps;isahh; nfhtpYf;F bjd;g[wKs;s njhl;lj;Jr;rhisahfpa jd; thr!;jyj;jpy; jhf;fy; bra;J fl;lzk; U:/31/00 brYj;jpjath;/"
It therefore connotes as though the very Will was presented by Thiruvenkadam Pillai himself at his residence, but there is no indication that chapter IX of the Tamil Nadu Registration Rules have been complied with and the necessary endorsement was made to that effect. As such, absolutely there is no endorsement found in Ex.B46, the Will, about the registering officials having attended the residence of the testator and about the registration of the Will. There is nothing to indicate that the registering official was summoned to the house for such registration. Head really an application was filed for summoning the registration authority, then there should have been detail narration of the said fact in the written statement or in the rejoinder or in the deposition of P.W.1. When the plaintiffs are challenging the genuineness of the Will, the defendants were duty bound to summon the registration department to produce the necessary application for summoning the registration official for registration. In fact, Rule 38 would contemplate that such application without stamp should have been signed by the person on whose behalf the attendance is required. There is nothing to show that Thiruvenkadam Pillai signed in any such application. No reference to the application number is also found in the deed. There is also no endorsement that the registering official got himself satisfied about the testator's consciousness to present the Will for registration at his residence. In this case, these factors gain prominence because according to the defendants, both the attesting witnesses died and D.W.1 himself would state that only the attesting witnesses, namely K.T.Thomas and Chidambaram Pillai brought it from the Registration Office.
50. I am at a loss to understand as to how the attesting witnesses could lift the Will from the Registration Office. In fact, no disinterested party who is conversant with the signature of Thiruvenkadam Pillai identified before the trial Court the signature of Thiruvenkadam Pillai. Neither D.W.2 nor D.W.3 identified the signature of Thiruvenkadam Pillai as they are only the respective sons of the attestors. Both D.Ws.2 and 3 did not identify the signatures of the testator Thiruvenkadam Pillai, but they only identified their respective fathers' signature as attesting witnesses. However, D.W.2 himself during cross examination would state that in Ex.B46 the purported signatures of Thiruvenkadam Pillai differ from one sheet to another sheet. There is nothing to evince and connote as to why any independent witness was not examined to identify the signature of Thiruvenkadam Pillai. These vital points have not been considered by the lower Court. By referring to a few decisions, but failing to consider other vital relevant decisions in this regard, simply the lower Court jumped to the conclusion that because the sons of the attestors' identified their respective father's signatures, he believed the Will. Here as per the propounders, the Will was registered in a particular manner, so to say, by summoning the registration official to the house, but absolutely there is no endorsement to that effect and that itself would clearly expose that the Will is not a genuine one. Simply because the Will is a registered one, it cannot be taken for gospel truth that the Will was genuinely executed.
51. Further more, in the wake of such absence of specific endorsement referred to supra, the presumption as contemplated under Section 90 of the Indian Evidence Act would not be attracted. The fact also remains that the day after the next day after the registration of the Will, so to say on 4th February 1963 itself the testator died and his signatures as pointed out by me were shaky and there are insertions in the Will, corrections and overwritings and the purported signatures of the testator himself contain over writings and in such a case, it cannot be held that the burden is cast upon the propounder of the Will to prove that the testator executed the Will in a sound state of mind as has been discharged. Even though in the Will there is some reference about the bequeathing of testator's share in a Company, nevertheless, there is no evidence in that regard. As such, the learned counsel for the plaintiffs is right in his argument that purely for the purpose of namkevaste compliance with the legal proposition that there should be provision for the daughter also, the Will was written in such a manner.
52. During the year 1963, there is nothing to disclose and highlight as to what made the testator to deprive the first plaintiff of her share in Thiruvenkadam Pillai's property. It is quite obvious that as on 04.02.1963, the date of death of the testator, the first plaintiff, Booshanambal is one of the legal heirs of Thiruvenkadam Pillai entitled to his half share in the joint family property comprised of Thiruvenkadam Pillai and his son Govindaraju Pillai (D1). It is therefore clear that the defendants with an intention to deprive the plaintiffs of her 1/4th share in the 'A' scheduled properties prepared such a Will in such a perfunctory manner, which cannot be upheld as a genuine one.
53. At this juncture, I would like to refer to the following decisions relating to the proof required relating to proving of the Will.
(i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others]
(ii) 2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another]
(iii) 2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others]
(iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others]
(v) 1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal]
(vi) AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another]
(vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others]
(viii) AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others]
(ix) 2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy]
(x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others]
(xi) 2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others]
(xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph] As such a plain reading of those decisions would highlight and disclose that it is the bounden duty of the propounder of the Will to prove the state of mind of the testator to dispose of the property. But in this case, in the wake of those glaring defects and irregularities, it cannot be held that the propounder of the Will proved the due execution of the Will by the testator.
54. The learned Senior Counsel for the defendants cited the decision of this Court reported in AIR 1960 Madras 283 [Nammalwar and others v. Appavu Udayar and other], an excerpt from it would run thus:
"5. Appavu Udayar died on 31st July 1902. That is the date on which he is said to have executed the codicil on the back of the registered will, Ex.A1. Nobody questions the genuineness of the will. It is said that all the attestors to codicil,-- there are three of them -- were dead on the date of the suit. The writer also was dead. This fact is not disputed. The document, Ex.A1, on the back of which is written the codicil, was produced by the Land Mortgage Bank, Turichirapalli, with whom the 2nd defendant had lodged it in connection with a transaction which he had with the Bank. The document is certainly more than 30 years old and it has been produced from custody.
Under the circumstances, the presumption arising under S.90 of the Evidence Act can be drawn as to the due execution of the document and attestation of it. The only two circumstances relied on by Mr.Ramamurthi Aiyar as negativing the presumption are that the codicil was not published till 1930, when for the first time it is mentioned in the surrender deed, Ex.A.2 and the document was not executed on a separate piece of paper, but appears to be endorsed on the last page in the will. Neither of them, in our opinion, is sufficient to rebut the presumption arising under S.90 of the Evidence Act. ...."
55. The learned Senior Counsel for the defendants placed reliance on the cited decision to drive home the point, since the emergence of Ex.B46, thirty years elapsed, and as such, it should be taken as a genuine Will. However, the learned counsel for the plaintiffs would cite appropriately and appositely, the recent decision of the Hon'ble Apex Court reported in 2009 (3) SCC 687 [Bharpur Singh and others v. Shamsher Singh], an excerpt from it would run thus:
"19. The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a will have no application. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the court and capable of giving evidence."
56. A bare perusal of it would make the point clear that the defendants cannot place reliance on Section 90 of the Indian Evidence Act and claim that they are absolved from the responsibility from proving the due execution of the Will by the testator as though it is an ancient document. The Hon'ble Apex Court clearly and categorically mandated that Section 90 of the Indian Evidence Act cannot be taken as a shelter by the propounder of the Will, but he has to prove strictly in accordance with Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act coupled with Sections 69 and 70 of it, as the case may be.
57. Not to put too fine a point on it, simply because a Will is proved to be of thirty years old, it cannot be presumed that the Will was executed by the testator in a sound state of mind, satisfying all the requirements of a genuine Will. There is also no indication in this case that the said Will was executed and acted upon by the plaintiffs.
58. The learned counsel for the plaintiffs would also correctly submit and contend that the plaintiffs were not aware of such a Will before the dispute started between them. He would also convincingly argue that the plaintiffs are in possession of the 'B' scheduled property even before 1970 and not from 1970 as falsely projected by the defendants. He would place reliance on Ex.A15 , the birth certificate of the son of the first plaintiff which would show that when the son of the first plaintiff was born on 26th May 1960, the first plaintiff was residing in the 'B' scheduled property only. Ex.A16, the Insurance policy issued in the name of the husband of the first plaintiff would also exemplify that during the year 1967, P1 and her husband were staying in the 'B' scheduled property. Ex.A17 is the news item relating to the death of the first plaintiff's husband and the same was published on 18.12.1986 in the newspaper that the first plaintiff's husband died only when he was residing in the 'B' scheduled property. As such, the first plaintiff by her oral and documentary evidence clearly established that the first plaintiff even before 1960 started living in the 'B' scheduled property.
59. It is also clear that the plaintiffs have also established that the Dairy Farm was run by the descendants of the first plaintiff and D1, wherefore, it cannot be stated that the plaintiffs acknowledged and acquiesced to the Will, Ex.B46.
60. In the wake of the settled proposition of law, the evidence of D.W.1 if analysed it is explicitly and palpably clear that even as per his version, Thiruvenkadam Pillai was affectionate towards the first plaintiff as well as D.W.1. Before the execution of the Will by the testator, he was sick for four months, but he was not hospitalised, nonetheless he took treatment. D.W.1 would state that during the year 1963, the testator was sixty years old.
61. At this juncture, I would like to extract hereunder Section 69 of the Indian Evidence Act:
"69. Proof where no attesting witness found.- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person." (emphasis supplied)
62. Section 69 of the Indian Evidence Act contemplates not only proving that atleast one of the attesting witnesses' signature is that of the witness's signature, but also proving that the signature of the testator is that of him. Obviously and axiomatically, D.W.1 is an interested witness as the beneficiaries under that Will is his own descendants for whom he is litigating along with them. As such it cannot be countenanced that the defendants have proved the Will.
63. The learned counsel for the plaintiffs also cited the following decision of the Hon'ble Apex Court reported in AIR 2007 SC 614 [Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others], an excerpt from it would run thus:
"31. Section 63 of the Indian Evidence Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
32. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage (2002) 2 SCC 85 and Sridevi v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. Subject to above, proof of a will does not ordinarily differ from that of proving any other document.
33. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit."
64. A plain reading of those excerpts would clearly demonstrate that the evidence of D.Ws.1 to 3, in the wake of the discrepancies found in the Will cannot be held to be sufficient as the ones capable of proving the genuineness of the Will. Here as has been correctly pointed out by the learned counsel for the plaintiffs, the very recital in the Will itself is unnatural because the entire half share of the testator in the immovable properties, namely 'A' and 'B' scheduled properties were given to D1's descendants, whereas, not even a bit of 'A' and 'B' scheduled properties, was given to P1 or her descendants and that really is a suspicious circumstance. As has been already highlighted above, even the so called shares are not found to be the ones which existed at all. As such, as per the decision cited supra, the propounders cannot be held to have discharged their burden in proving the Will.
65. The learned counsel for the plaintiffs cited the following decision of this Court reported in 1997 (3) LW 673 [Govindan Chettiar (Died) v. Akilandam alias Sethalakshmi and 24 others]. This decision is also relating to proving of the Will and it is to the effect that the signature of the testator should be proved. But as has been pointed out supra, here the signature of the testator has not been proved and that too in the wake of the murky evidence available.
66. A mere reading of the lower Court's judgment clearly demonstrates that all these drawbacks in the Will have not been taken into account by the lower Court and without applying the law properly, simply jumped to conclusion that Will is a valid one.
67. The trial Court in paragraph 57 of its judgment in a cryptic manner without adhering to the law points involved in analysing the impugned Will, simply jumped to the conclusion as though P.Ws.2 and 3, the respective sons of the attestors' deposed about the attestors' signatures and that the Will is deemed to have been proved. The trial Court miserably failed to take into consideration the important ingredients of Section 69 of the Indian Evidence Act. A plain reading of it would reveal that the signature of the testator also must be proved. Here, the trial Court in its judgment never took into consideration the said fact. It is curious to note that even D.W.1 never in his deposition stated that the signature found in the said Will is that of his father. D.W.1(D1) would claim that he was not present at the time of the emergence of the Will. However, he would candidly and categorically admit that for four months anterior to the emergence of the Will, the testator was suffering from ill health. No steps have been taken to examine the Doctor who treated the testator during the said fourth months' time. Even though P.W.1 candidly admitted that medical treatment was given to the testator for those four months by keeping him in the house itself, but without admitting in hospital, there is no adequate explanation for the differences among the signatures found in several sheets of the Will. There is nothing to expound and explain as to why certain sentences were huddled together at the end of the Will.
68. D.W.1, the son with whom the testator lived would depose in the following words:
"rhl;rpfshf jhk!; kw;Wk; rpjk;guk;gps;is Mfpnahhplk; *vjw;fhf vd; mg;gh capy; vGjpdhh;* vd;W nfl;nldh vd;why; mt;thW nfl;ftpy;iy/ mg;ggh capy; vGjpitj;jhh; vd;W mth;fs; brhd;d nghJ *buhk;gre;njhc&d;* vd;W ehd; brhd;ndd;/ D.W.1's deposition as extracted supra would project and display, convey and evince as though D.W.1 was not at all in any way aware of the Will and on Thomas and Chidambaram Pillai having informed D.W.1 about the same, he came to know of it. The realities of life should be taken into consideration while interpreting such evidence of a witness. It is something totally unimaginable even by phantasmagorical thoughts, that a son with whom the father lived, and executed the Will and got it registered by summoning the registering official to the residence, could plead lack of knowledge of those facts. No more elaboration in this regard is required to highlight as to how D.W.1 has not come forward with truth relating to that Will.
69. In paragraph 64, the trial Court even though referred to the plea on the side of the plaintiffs relating to the joint possession of the 'A' scheduled property by conducting Milk Dairy Farm therein, the discussion is only towards 'B' scheduled property. As such, the trial Court was wrong in giving a finding that the Will is a valid one. The trial Court also fell into error in not recognising the right of the first plaintiff in the share of the deceased Thiruvenkadam Pillai. Accordingly, the plaintiffs are entitled to mesne profits from the date of the suit, subject to their own liability also to account for the income if any they derived from the suit properties.
70. In the result, the Will is held to have been not proved as per law. Accordingly, this Court holds that half share of Thiruvenkadam Pillai in the 'A' and 'B' scheduled properties devolved upon P1 and D1 equally and accordingly, the first plaintiff was entitled to 1/4th share in both 'A' and 'B' scheduled properties and consequently on the death of P1, her legal heirs, P2 to P10 are entitled to her 1/4th share.
Accordingly, point No.3 is decided to the effect that the Will was not proved by the propounders.
POINT Nos.4 TO 7:
71. In view of the ratiocination adhered to above, the trial Court was not justified in issuing mandatory injunction so as to evict the plaintiffs from the 'B' scheduled property.
72. In the result, the judgment and decree of the lower Court is set aside and the original suit is decreed as under:
The plaintiffs are entitled to 1/4th share in 'A' and 'B' scheduled properties and accordingly they are entitled to seek for partition by filing a final decree application. They are also entitled to seek for appointment of an Advocate Commissioner to get the suit properties divided by metes and bounds for allotting 1/4th share in each of the 'A' and 'B' scheduled properties. The counter claim of the defendants is dismissed in toto. The plaintiffs are at liberty to get appointed a Commissioner during final decree decree proceedings for assessing the income accrued from 'A' and 'B' scheduled properties from the date of suit till allotment of the respective shares to the parties concerned. The lower Court on taking evidence is empowered to direct who should pay in favour of the other the income so assessed.
In the result, this appeal is allowed accordingly, and the cross objection stands dismissed. However, there will be no order as to costs.
Consequently, connected miscellaneous petitions are closed.
06.08.2009 Index : Yes/No Internet: Yes/No G.RAJASURIA, J.
gms To The Additional District Judge, (Fast Track Court No.2), Coimbatore.
Pre-delivery Judgment in A.S.No.533 of 2007 06.08.2009