Madras High Court
P.M.Mani vs P.S.Mohankumar on 12 June, 2002
Equivalent citations: AIR 2002 MADRAS 402
Author: M.Chockalingam
Bench: M.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12/06/2002
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
T.O.S.No.36 of 1987 and C.S.No.1620 of 1993
P.M.Mani .. Plaintiff in TOS 36/87
and 2nd defendant in
CS 1620/93
Vs
1. P.S.Mohankumar
2. P.S.Parameswaran
alias P.S.Suresh(amended
as per order dt.26.7.93
and made in A.No.3869/93)
rep.by his next friend .. Defendants 1 and 2 in
and brother 1st defendant. TOS 36/87 and
Plaintiffs in CS
1620/93
3. P.M.Selvasigamani
4. P.M.Kamalanathan
5. Smt.Karpagambal
6. Smt.Pushpavani .. Defendants 1 and
3 to 5 in CS 1620/93
!For Plaintiff in
TOS 36/87 & 2nd
defendant in CS : Mr.N.S.Varadhachari,
1620/93 for Mr.A.Venugopal
^For Defendants
in TOS 36/87 &
Plaintiffs in : Mr.T.T.Ravichandran
CS 1620/93 for Mr.N.A.Venkatasubramanian
:COMMON JUDGMENT
T.O.S.No.36 of 1987: This suit is filed for issue of a probate in respect of a Will dated 6.5.1968 executed by Madurai Muthu Mudaliar.
2. C.S.No.1620 of 1993: This suit is filed for a declaration that the plaintiffs are entitled to 1/3rd shares of the plaint schedule mentioned properties i.e. each 1/6 share, for a direction to the second defendant to furnish accounts for the management of the suit properties from 10.7.1971, for a direction to the defendants to pay mesne profits, for allotment of plaintiffs' share by dividing the suit properties into metes and bounds, and for costs.
3. The plaint averments in TOS 36/87 are as follows: The father of the plaintiff by name Madurai Muthu Mudaliar was ordinarily residing at No.29 (Now 14) Subramania Mudali Street, Madras 7, and he died on 10.7.91. At the time of his death, he left behind him the following legal heirs viz. 1) Karpagam Ammal (wife); 2) P.M. Selvasigamani (son); 3) P.M.Mani (son); 4) P.M.Kamalanathan (son); 5) Puspaveni (daughter); 6) Mangalaveniammal (daughter); 7) Hamsaveni ( daughter) and 8) Pankajammal (daughter). Apart from the above legal heirs, the deceased left no other surviving heirs. The mother of the deceased pre-deceased him. He executed his Last Will and Testament on 6.5.1968 and registered the same at Madras on the same day. The said will was executed by the testator in sound disposing mind in the presence of witnesses. The plaintiff was appointed as Executor in the said will. Two sons of the deceased viz. P.M.Selvasigamani and P.M. Kamalanathan had filed an application No.2415/82 and in the said application, the plaintiff was directed to file the original will of the deceased. Since the original will was misplaced and not traceable, the plaintiff filed a counter to the said application stating that the will being a registered one, a certified copy of the same may be filed by the applicants and that the plaintiff would produce the original will as and when it is traced. Prior to the said application, there were negotiations for an amicable settlement, but all attempts failed. Plaintiff's younger brother P.M.Kamalanathan, plaintiff's mother Karpagammal and the plaintiff's sisters Puspaveni, Mangalaveni, Hamsaveni, Pankajammal had all agreed for an amicable settlement and as an outcome of the discussion, the plaintiff's younger brother P.M. Kamalanathan had released his share in favour of the plaintiff, and the plaintiff's mother and sisters have also released their share if any in his favour, as per the release dated 3.3.83. Plaintiff's elder brother's son P.S.Mohankumar and P.S.Parameswaran have filed a suit in O.S. No.3192/83 on the file of the IV Assistant City Civil Court, Madras. The plaintiff has come forward with the present suit after a long duration for the reasons that he was under the impression that his elder brother having filed the said application would proceed further in the matter, but he has not done so; that there is no possibility for any amicable settlement between the parties; and that because the plaintiffs in O.S.3192/83 have falsely alleged that the property in the hands of the testator was ancestral, even though it has been specifically and categorically stated in the will that the property in the possession of the testator was self acquired. Hence, the delay in filing the suit may be condoned. Therefore, probate may be issued as prayed for.
4. In the written statement filed by the defendants, it is alleged as follows:
The defendants are the grandsons of late Madurai Muthu Mudaliar through P.M.Selvasigamani. The deceased left behind him three sons viz. P.M.Selvasigamani, the father of the defendants, P.M.Mani, the plaintiff herein and P.M.Kamalanathan. The deceased and his sons constituted a Hindu Joint Family and it owned several movable and immovable properties. After the death of P.K.Madurai Muthu Mudaliar, the joint family continued to be undivided and taking advantage of the defendants' father's submissive and unassertive character, the plaintiff who was managing the family properties started doing so to his advantage and began living a luxurious and way-ward life by wasting the family funds. Since the plaintiff did not care for the interest of the defendants, the first defendant instituted a partition suit in O.S.3192/83 on the file of IV Assistant City Civil Court, Madras. Evidence of parties to the suit were recorded as early as 29.1.1986. In order to protract the proceedings, the plaintiff herein filed the present suit for grant of probate. The deceased had not executed any Will much less a will dated 6.5.68. The deceased was very sick and not in sound disposing state of mind. Assuming that the deceased had executed a will, it could not have been executed by him out of his own and free will and volition and in sound disposing mind.
Therefore the said will is not valid in law. The very conduct of the plaintiff in getting a release from his brother P.M.Kamalanathan by release deed dated 3.3.83 would show the genuineness and validity of the Will. In the said release deed there is no whisper or mention about the will dated 6.5.68. The very existence of the will dated 6.5.68 was suppressed by the plaintiff for so many years. The plaintiff herein in his evidence as DW1 in O.S.3192/83 has asserted that there is no necessity to probate the will as he was not interested in acting in accordance with the will dated 6.5.68. In view of his clear admission, the plaintiff is not interested in probating the will. He is not entitled to get any relief by probating the will. The plaintiff had chosen to suppress the existence of the will to his advantage, thereby depriving the other members of the family who have a rightful share in the property. The suit is barred by limitation. Hence, the suit is liable to be dismissed.
5. The plaint averments in C.S.No.1620 of 1993 are as follows: The plaintiffs are the only two sons of the first defendant, while the defendants 2 and 3 are brothers. The fourth defendant is the mother of the defendants 1 to 3. The fifth defendant is the only daughter of late Madurai Muthu Mudaliar and sister of the defendants 1 to 3. The plaintiffs and the defendants are descendants of late Madurai Muthu Mudaliar, who died on 10.7.1971. The deceased and the parties herein constituted a joint Hindu Family undivided in status. It had the joint family properties, as described in the schedule to the plaint. These properties are not self earned properties of late Madurai Muthu Mudaliar. They are ancestral in character. Madurai Muthu Mudaliar did not make any attempt to dispose of the property. After his death also, the joint family continued to be undivided up to this date. Plaintiffs' father is very docile, submissive and unassertive. The second defendant is actually managing the family properties naturally to his advantage. After meeting all his lavish expenses, he pays a sum of Rs.300/- to his brothers. When the plaintiffs protested against the activities of the second defendant, he joined hands with his brothers. They could have fabricated documents contrary and adverse to the interest of grandsons. Such documents are not binding, since Madurai Muthu Mudaliar had no power to dispose of the family property either by will or settlement. Even if any will exists, it could not be genuine. Madurai Muthu Mudaliar was very sick for many years prior to his death. Such disposition, if any, is not binding on the suit properties. Hence, the suit has been filed for the abovesaid reliefs.
6. The first defendant filed a written statement stating that he has no objection for a preliminary decree being passed for partition of the plaint schedule properties into metes and bounds as prayed for by the plaintiff.
7. In the written statement filed by the second defendant it is stated as follows:
The suit properties belong to the late Madurai Muthu Mudaliar, who is the paternal grandfather of the plaintiffs and the father of the second defendant. The said properties were purchased by him out of his own funds and they are self acquired by the late Madurai Muthu Mudaliar and they are not ancestral properties. The said Madurai Muthu Mudaliar had every right to dispose off the said properties. The father of the second defendant Madurai Muthu Mudaliar had left a will distributing the properties and appointing the second defendant as the executor and stating that the 2nd defendant should perform the weddings of his brother Kamalanathan and his sister Pankajam and also to clear the debts of his father and also to maintain the family till the actual partition takes place. Accordingly, the second defendant had performed the said two weddings, cleared most of the debts of his father and is maintaining the families. Madurai Muthu Mudaliar did not make any attempt to disburse the properties by testament. Hence, the allegations regarding luxurious and way-ward life, etc., are highly defamatory. As per the settlement, the brother of the 2nd defendant P.M.Kamalanathan the third defendant and all four sisters and mother of the second defendant have relinquished their rights over the suit properties in favour of the 2nd defendant for consideration and the same has been registered on 3.3.1983. Madurai Muthu Mudaliar did leave a will and he was in sound mind while executing the will and he had every right to dispose off the suit properties. If at all the plaintiffs are entitled to a share in the suit properties, it would be only 2/3rds of their father's share and their father's share is only 1/8 as there were eight legal heirs to the late Madurai Muthu Mudaliar that is to say that the plaintiffs if at all they are entitled to a share they will get 2/24th share of the entire property as their share. He had constructed the first floor of the premises No.14, Subramaniya Mudali Street, out of his own funds, and no one has got a share in the said first floor. Therefore, the suit is liable to be dismissed with costs.
8. On the above pleadings, the following issues were framed in TOS 3 6/87: 1. Whether the alleged will dated 6.5.1968 executed by late P.K. Madurai Muthu Mudaliar is true and valid? 2. Whether the plaintiff is entitled to probate of the will to have effect limited to the State of Tamil Nadu? 3. To what relief? 9. On the above pleadings, the following issues and additional issues were framed in CS 1620/93: ISSUES: 1. Whether the plaintiffs are entitled to 2/9 share as contended by them? 2. To what relief? ADDITIONAL ISSUES: 1. Whether the release deed dt.3.3.1983 is valid and would operate for the benefits of other members? 2. Whether the plaintiffs are entitled to 1/3rd share? 3. Whether D2 is liable for accounts? 4. Whether the plaintiffs are entitled to mesne profits?
10. A suit for partition originally filed before the City Civil Court, Madras in O.S.No.3192 of 1983 on transfer, was taken on file by this court in C.S.No.1620 of 1993 wherein the plaintiffs have sought for 1/3rd share in the plaint schedule properties along with rendition of accounts from the second defendant in respect of the suit properties from 10.7.1971, while TOS 36/87 was filed by the second defendant therein seeking probate of the Will dated 6.5.1968 alleging that the same was executed by Madurai Muthu Mudaliar in respect of the properties shown in the schedule of properties of the partition suit.
11. In TOS 36/87 P.Ws.1 to 3 were examined and Exs.P1 to P20 were marked on the side of the plaintiff, and the first defendant examined himself as D.W.1 and marked Exs.D1 to D7. In CS 1620/93, the first plaintiff was examined as P.W.1, while the second defendant was examined as D.W.1. On a memo filed by the parties, the documents marked in CS 1620/93 were marked in TOS 36/87 on the respective sides.
12. Arguing for the plaintiff in TOS 36/87 and the second contesting defendant in CS 1620/93, the learned counsel would submit that the plaintiff in the testamentary proceedings has sought for the issue of a probate in respect of Ex.P1 Will dated 6.5.1968 executed by his father P.K.Madurai Muthu Mudaliar, wherein the plaintiff was appointed as the executor; that the said testator died on 10.7.1971 leaving behind him his widow, three sons and four daughters; that the executor originally filed the O.P. wherein all the legal heirs except the first son of the testator by name Selvasigamani, have given their consent affidavits stating that they had no objection for issue of probate in respect of the Will; that since the said Selvasigamani contested the proceedings by filing a caveat, the said O.P. was converted into the present suit; that it is surprise to note that the said Selvasigamani has neither appeared nor contested the suit, but has instigated his two sons to oppose the testamentary proceedings; that it remains to be stated that they had no right or interest in the property and they were not competent to oppose the proceedings also; that the said Selvasigamani has admitted the existence of Ex.P1 Will under Ex.D6 a notice issued by him through his lawyer; that it is pertinent to note that he has also admitted the same in an Original Application filed before this Court seeking production of the original Will; that the propounder has examined himself as PW1 and has also examined one of the attesting witnesses PW2 M.Baskaran, who has categorically spoken to the execution and attestation of the document; that apart from the said two witnesses, PW3 one of the identifying witnesses before the Sub Registrar has also been examined; that by adducing sufficient evidence through the said witnesses, the plaintiff has clearly established the execution of Ex.P1 testament, as required by law; that it is true that there was delay in initiating the testamentary proceedings to probate the Will; that the plaintiff has also satisfactorily explained the same in the course of his evidence; that the law does not prescribe any period of limitation for making any application for probate or letters of administration, but when there is a longer delay, the propounder has to explain the same in order to remove the suspicion that may arise due to the delay; that in the instant case, the plaintiff has well explained the delay that was caused by acceptable reasons, and under such circumstances, the court has to issue the probate in respect of Ex.P1 Will. Added further, the learned counsel that two sons of Selvasigamani have filed the instant suit for partition alleging that the suit properties which were the subject matter of Ex.P1 Will were ancestral and joint family properties, and hence, they were entitled to 1/3rd share in the properties; that according to the plaintiffs in the partition suit, Madurai Muthu Mudaliar and his brothers were members of the Hindu joint family, which owned lot of properties; that the properties that came to the hands of Madurai Muthu Mudaliar were joint family properties, and hence, it required division; that the grandfather of the plaintiff Madurai Muthu Mudaliar did not have any independent right over the said properties to make any disposition of the same; that it is pertinent to note that no proof is available to indicate that there was any joint family nucleus for purchase of the properties in question or there were any ancestral properties in the hands of Madurai Muthu Mudaliar and his brothers; that the said Madurai Muthu Mudaliar and his brothers entered into a partition under Ex.P16 dated 17.12.1945; that a very reading of the recitals therein would clearly indicate that there was no joint family nucleus; that the properties divided between the brothers were their self acquisitions, and hence, those acquisitions cannot be impressed with the incidents of joint family properties; that Madurai Muthu Mudaliar and his brothers could only be co-sharers, and in result, those properties could be passed by inheritance and not by survivorship; that on the date of execution of Ex.P1 Will, those properties were separate and self acquired properties of Madurai Muthu Mudaliar; that he has also executed Ex.P1 Will, wherein he has made disposition of the same; that the plaintiffs in the partition suit have no locus standi even to file the suit; that even assuming that the said Madurai Muthu Mudaliar did not execute any Will, the plaintiffs in the partition suit, who were the grandsons cannot maintain a suit, in view of the provisions of the Hindu Succession Act; that the said Selvasigamani, though shown as the first defendant in the partition suit, has remained exparte; that he has instigated his sons to file the said suit for partition; that even as per the admission of the first plaintiff in the partition suit, his father was attending to the court proceedings; that it is a fit case where adverse inference has got to be drawn against the plaintiffs in the partition suit on account of the non examination of the said Selvasigamani, who is a material witness in the suit and who could speak better about the acquisition and character of the suit properties; that insofar as the release deed executed by all other heirs of Madurai Muthu Mudaliar under Ex.P18 dated 3.3.1983, the plaintiffs in the partition suit cannot raise any question as to the validity of the said document, and thus, looked at from any point of view, the plaintiffs in the partition suit are not entitled to maintain the suit for partition, and it lacks bona fide also, and hence the said suit has got to be dismissed, while the suit for probate has got to be decreed.
13. In answer to the contentions put forth above, the learned Counsel appearing for the objectors in TOS 36/87 and the plaintiffs in C.S.1620/93 with vigour and vehemence would argue that the grandfather of the plaintiffs Madurai Muthu Mudaliar and his brothers were members of Hindu coparcenary and constituted a joint Hindu family, which continued to remain undivided; that the immovable properties described in the Schedule annexed to the plaint belonged to the said joint family; that they were not self acquired properties of Madurai Muthu Mudaliar; that since those properties were ancestral in character, the plaintiffs are entitled to their respective shares in the properties; that since Madurai Muthu Mudaliar knowing fully well did not make any attempt or arrangement to dispose of the same by making any testament and thus by operation of law, the plaintiffs in the partition suit are entitled for the respective shares; that at the time when he died on 10.7.1971, though the father of the plaintiffs Selvasigamani was the eldest member in the family, the contesting second defendant taking undue advantage of the very docile and submissive nature of his elder brother, overtook and was actually managing the family properties to his advantage; that he was collecting rents by letting out the properties on rental; that the plaintiffs sought for a partition through their father and directly also, but their father joined hands with the second defendant, and under such circumstances, the plaintiffs are entitled to file a suit independently; that it is pertinent to note that when a notice was issued calling their 2/9th share, the contesting defendant did not issue any reply; that when the plaintiffs proceeded against the unlawful acts of the contesting second defendant and demanded their legitimate share, all the defendants joined together and began to fabricate documents, adverse to the interest of the plaintiffs; that one such document was the release deed executed by all other children of Madurai Muthu Mudaliar except their father Selvasigamani; that the said release deed was neither binding nor valid; that the other defendants cannot relinquish their rights and interest in the family estate to one of the several coparceners, and thus, the plaintiffs are entitled to their 2/9th share in the plaint Schedule properties. Vehemently opposing the request for issue of a probate, the learned Counsel would submit that the said Madurai Muthu Mudaliar and his brothers constituted a Hindu coparcenary, which acquired lot of properties including the subject matter of the Will; that those properties continued to remain as ancestral properties in the hands of Madurai Muthu Mudaliar, in respect of which he had no power of disposition, and thus he was not competent to execute a Will; that the contesting defendants in the testamentary proceedings, after pre suit notice, filed a partition suit; that after the evidence in the said suit was over in the year 1986, the plaintiff P.M.Mani initiated proceedings to probate Ex.P1 Will with a clear intention of protracting the proceedings; that the said Madurai Muthu Mudaliar did not execute any Will or Ex.P1 Will dated 6.5.1968; that the said Will was not genuine and valid; that the said Madurai Muthu Mudaliar was sick for so many years prior to his death; that since he was affected mentally much, he was not in a sound disposing state of mind, and hence, he could not have executed Ex.P1 Will out of his free will and volition; that before initiating the proceedings invoking the testamentary jurisdiction to probate the alleged Will, the plaintiff in that suit has obtained a release deed from all the heirs of Madurai Muthu Mudaliar, except Selvasigamani, in respect of the joint family properties; that the said Will was not referred to in the said release deed marked as Ex.P18; that if the Will was true and genuine, there was no need for the plaintiff to suppress the Will till the initiation of the probate proceedings in 1987; that a careful scrutiny of the evidence adduced through PWs 2 and 3 would clearly reveal that they were interested in the propounder; that it is pertinent to note that the said Selvasigamani and Kamalanathan took out an application in this Court seeking directing to the propounder to produce the original Will, but he has failed and neglected to produce the Will; that this would indicate that the Will was neither true nor genuine; that the recitals in Ex.P1 Will would clearly reveal that so many duties were imposed on the propounder to be performed within four years from the date of the death of the testator, but he has not discharged any one of the duties therein; that under such circumstances, the propounder having failed to perform his obligations under the Will, cannot seek the aid of the Court to probate the Will; that even according to the propounder, Madurai Muthu Mudaliar executed the Will on 6.5.1968; that he died on 10.7.1971; that the existence of the Will was not spoken to by the propounder till a suit for partition was filed in the year 1983, but the proceedings to probate the Will has been initiated only in the year 1987, after nearly about 15 years from the time of the death of the testator, and thus, the proceedings are barred by limitation and latches; that the propounder has not explained properly the enormous and inordinate delay that has occasioned in the initiation of the probate proceedings, and under such circumstances, the claim of the propounder has got to be dismissed while the suit for partition has got to be decreed as prayed for.
14. ISSUES 1 & 2 and ADDitional ISSUES 1 to 4 in CS 1620/93: As seen above, the plaintiffs in the partition suit have sought for division of the suit properties demanding their 1/3rd share specifically alleging that the 'A' Schedule house property and 'B' Schedule landed properties annexed to the plaint were ancestral properties which came to the hands of their grandfather Madurai Muthu Mudaliar, that they originally belonged to the Hindu Joint Family of Madurai Muthu Mudaliar and his brothers; that those properties were not self acquired properties of Madurai Muthu Mudaliar; that in view of the ancestral character of the same, Madurai Muthu Mudaliar neither made arrangement nor attempted to dispose of the same; that he died on 10.7.1971; that even after his death, those properties continued to be undivided; that taking undue advantage of the docile and unassertive nature of their father, the 2nd defendant who is the junior paternal uncle took possession of the family properties; that he has not only mismanaged, but also has unlawfully utilised the income from the properties by way of rent and otherwise; and that the circumstances warranted the plaintiffs to file a suit for partition. Flatly denying the demand for partition, the 2nd defendant has put forth a defence stating that the suit schedule properties were self acquired properties of his father Madurai Muthu Mudaliar; that the said Madurai Muthu Mudaliar, as the full owner of the property vested with the full right of disposition has executed a Will on 6.5.1968, appointing him as the executor; that on the death of his father on 10.7.1971, he has taken possession of the properties, and he has also filed a suit seeking probate of the Will.
15. Admittedly Madurai Muthu Mudaliar had five brothers. The plaintiffs 1 and 2 in the partition suit are the grandsons of Madurai Muthu Mudaliar through his first son Selvasigamani. Himself and his brothers who lived jointly, entered into a registered deed of partition under Ex.P16 dated 17.12.1945. From the time of partition Madurai Muthu Mudaliar was living separately with his family members. He died on 1 0.7.1971 leaving behind him his second wife Karpagambal, his first daughter Pushpaveniammal, who is unmarried and having defective eyesight, the only daughter through his first wife Late Vedammal, his three sons Selvasigamani, Mani and Kamalanathan and three other daughters viz. Mangalaveni, Hamsaveni and Kumari Pankajammal. His two daughters viz. Mangalaveni and Hamsaveni were given in marriage and they were living in their respective houses. The said Madurai Muthu Mudaliar was living with his wife and children and residing at the house property situate in Door No.29, Subramaniya Mudali Street. After the death of the said Madurai Muthu Mudaliar, the marriages of his third son Kamalanathan and his daughter Kumari Pankajammal were performed. The second wife of Madurai Muthu Mudaliar died in 1992 and the first daughter died in the year 1995. Alleging that the plaint 'A' Schedule house property and 'B' Schedule landed properties were ancestral in character and belonged to the joint family of Madurai Muthu Mudaliar and his brothers, the plaintiffs have demanded for partition. They are also the members of the joint family and grandsons of the said Madurai Muthu Mudaliar through his first son Selvasigamani referred to above.
16. When a person claiming that a particular property was ancestral or it belonged to the joint family, the burden of proving the same lies on him. He must show initially that there was sufficient nucleus. A presumption that a property in the hands of an individual coparcener was joint family property can be drawn only if it is shown that there was a nucleus of the joint family property, from which it might fairly be said to have grown. If such nucleus is proved by sufficient evidence or admitted by the opposite party, only then, the onus of proving separate acquisition on the coparcener alleging the same would arise. In the instant case, a careful analysis of the evidence, both oral and documentary would reveal that the plaintiffs have not discharged the burden of proof, showing that the suit properties were ancestral properties.
17. The said Madurai Muthu Mudaliar with his two brothers Thangavelu Mudaliar and sons of Rajagopala Mudaliar has entered into a registered deed of partition on 17.12.1945 under Ex.P16. A perusal of the said partition deed would reveal that one Kandasamy Mudaliar, father of the said Madurai Muthu Mudaliar died in or about 1906 leaving behind him Rathna Mudaliar, Appavu Mudaliar, Balasundara Mudaliar, Rajagopala Mudaliar, Thangavelu Mudaliar and Madurai Muthu Mudaliar @ Kanagasabai Mudaliar; that the said Kandasamy Mudaliar was eking his livelihood as a cultivator, and at the time of his death, no property either movable or immovable was available; that his six sons continued to live as members of joint family for some time, but had no ancestral nucleus of joint family property whatsoever; that Rathna Mudaliar and Appavu Mudaliar were eking their livelihood the former as an employee in the Railway Workshops, and the latter as an employee in the Buckingham and Carnatic Mills at Madras; that they lived separately without any community of food, worship or estate whatever from the other members of the family; that the said Balasundara Mudaliar, Rajagopala Mudaliar and Thangavelu Mudaliar were also employed; that they were also living together and put their earnings into the common and they jointly purchased only one item of immovable property viz. a house and ground in door No.14, Perumal Naicken Street, Purasawalkam; that the said Balasundara Mudaliar has executed a deed of release on 3.6.1909 in favour of his three younger brothers, and thus Madurai Muthu Mudaliar and two of his brothers continued to live as members of joint family for a few years and left their respective employments and started a Maligai and Firewood Depot business in or about 1922 or 1923, and from out of the proceeds accrued from the said business, they have purchased house properties and vacant sites situated at Madras and cultivable Nanja and Punja lands at Senneerkuppam Village; that in or about 1936, the said Rajagopala Mudaliar died leaving behind him his two brothers and three sons; and that the properties which were purchased and enjoyed jointly till then were divided under Ex.P16 partition deed. Under the said partition deed, the properties shown in plaint 'B' Schedule were allotted to Madurai Muthu Mudaliar. Thus, the recitals in the said partition deed would clearly indicate that the suit properties were not ancestral properties, but a part of the properties purchased by Madurai Muthu Mudaliar and his brothers out of their earnings.
18. The recitals under Ex.P16 partition deed would clearly disprove the case of the plaintiffs. They have not questioned the said deed of partition, nor can they question the same. The first plaintiff as PW1 has deposed that he was born in the year 1963, and he was about 8 years old in 1971, when Madurai Muthu Mudaliar died, and thus, taking into consideration that the properties in question were purchased long prior to the birth of the first plaintiff, he cannot have the direct knowledge as to the purchase of those properties. On the contrary, he has candidly admitted that he was not aware whether his grandfather had six elder brothers and six younger brothers and of their names, whether they partitioned the self earned properties among themselves, and whether they purchased the plaint 'A' and 'B' Schedule properties out of their own earnings also; that he did not know the name of his grandfather's father, his occupation and whether he had purchased the house out of his money. The plaintiffs have not examined their father, who admittedly has been living with them. It is pertinent to note that the father of the plaintiffs, who is aged 75 years, is the first son of Madurai Muthu Mudaliar. The non examination of the father of the plaintiffs, who could well speak about the properties in question, no doubt, has greatly affected the plaintiffs' case. It is pertinent to note that though the father of the plaintiffs is ranked as the first defendant, he remained exparte. Had the case of the plaintiffs been true that the suit properties were ancestral in character, the first son of Madurai Muthu Mudaliar could have well filed a suit for partition, but he had not done so. It remains to be stated that the plaintiffs have not even tendered any explanation for the non examination of their father. It can be well stated that except the bald allegations in the plaint and the mere assertions made by the first plaintiff in his evidence, the plaintiffs have not produced any evidence to prove that the suit properties were ancestral in character.
19. A Full Bench of the Supreme Court of India had an occasion to consider the question whether the members of different branches in a Hindu family can form a subordinate joint family and whether the acquisitions made by the members of different branches can be considered as joint family properties, in a case reported in AIR 1962 Members of different branches in family cannot form a subordinate joint family – 20 Suth WR 197 Overruled.
Corparcenary is a creature of Hindu Law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognise some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. The acquisitions made by the members of different branches jointly cannot be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result that their properties pass by inheritance & not by survivorship."
20. A reading of the decision stated supra would make it abundantly clear that the members of different branches in a joint family cannot form a subordinate joint family and the acquisitions made by the members of different branches can only be co-sharers with the result that their properties were passed by inheritance and not by survivorship. In view of the recitals found in the partition deed under Ex.P16, entered into between Madurai Muthu Mudaliar and his brothers, it would be candidly clear that there was no joint family nucleus, and the acquisitions made by the individual members were put together and subsequently divided. In the absence of any proof that there were any ancestral properties nor was there any nucleus available for the purchase of the properties, stated in the plaint schedule by the deceased Madurai Muthu Mudaliar, the plaint schedule properties cannot be characterised as ancestral properties. Thus, the properties in the hands of Madurai Muthu Mudaliar were his separate and self acquired properties, in respect of which he had a full and thorough power of disposition. Even assuming that Madurai Muthu Mudaliar has not executed a Will, it is pertinent to note that the properties of Madurai Muthu Mudaliar could be inherited by succession, according to the provisions of the Hindu Succession Act, 1956 and in view of the factual position that Madurai Muthu Mudaliar died in the year 1971. This legal position is well settled by a Full Bench of the Apex Court in a case COMMISSIONER OF WEALTH TAX, KANPUR AND OTHERS V. CHANDER SEN AND OTHERS reported in (1986) 3 SUPREME COURT CASES 567, as follows: "Under the Hindu Law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or form any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But this position has since been affected by Section 8 of the Hindu Succession Act. Since the Preamble to the Act reiterates that the Act is to 'amend' and codify the law and Section 4 thereof makes it clear that one should look to the Act in case of doubt and not to the pre-existing Hindu law, the express words of Section 8 of the Act would prevail over the aforesaid general law. When therefore, son inherits the property in the situation contemplated by Section 8 he does not take it as karta of his own undivided family but takes it in his individual capacity. The Schedule to the Act referred to in Section 8(a) indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son." In view of the pronouncements of the Apex Court stated supra, it is highly doubtful whether the plaintiffs can maintain a suit for partition, as one filed by them. It is pertinent to note that Selvasigamani, the first son of Madurai Muthu Mudaliar, who is alive and admittedly attending to the court proceedings, has not even chosen to file a written statement in the partition suit. The plaintiffs cannot question the release deed dated 3.3.1983, since they are not entitled to right or interest in those properties. Apart from the same, the question as to the validity of the said release deed would not arise for consideration in this suit. For the discussions made and reasons stated above, the plaintiffs are not entitled to ask for the division of the suit properties or rendition of accounts or mesne profits. The issues and additional issues in the partition suit are answered accordingly.
21. ISSUES 1 to 3 in TOS 36/87: In this suit, the plaintiff/propounder has come forward with a request to issue a probate in respect of a will dated 6.5.1968 alleging that it was the Last Will and Testament executed by his father Madurai Muthu Mudaliar, who died on 10.7.1971 at Madras and has appointed him as the executor thereunder. The defendants have contested the suit by stating that their grandfather Madurai Muthu Mudaliar did not execute any Will, and if any will existed, it could not be genuine and valid in law, as Madurai Muthu Mudaliar was very sick and was not in sound disposing state of mind, and he could not have executed the same out of his own and free will and volition. Hence, the question that would arise for consideration would be whether Ex.P1 Will is true and genuine and has come into existence, as alleged by the propounder, and whether the propounder has proved the execution and attestation of the Will, as required by law.
22. The Will in respect of which probate is sought for is marked by the plaintiff's side as Ex.P1 dated 6.5.1968. According to the propounder who is examined as P.W.1, his father Madurai Muthu Mudaliar executed Ex.P1 as his Last Will and Testament on 6.5.1968 at Madras and registered the same the very day. It is not the case of the propounder that he was present at the time of execution or registration of the said document. It is pertinent to note that the defendants who have raised the objections on Ex.P1 testament, have not disputed the signature of Madurai Muthu Mudaliar found in Ex.P1. As stated above, Madurai Muthu Mudaliar died on 10.7.1971, leaving behind him his wife, three sons and four daughters. The propounder has filed the O.P. on 4.3.1987 wherein all the legal heirs of the said Madurai Muthu Mudaliar except his first son Selvasigamani were impleaded. It is pertinent to note that the said Selvasigamani has taken out a caveat in that O.P., but has neither appeared nor raised any objection to the grant of any probate in respect of the Will in question. All the other legal heirs of Madurai Muthu Mudaliar have filed their consent affidavits stating that the said Madurai Muthu Mudaliar executed a Will under Ex.P1; and that they have no objection for grant of a probate in favour of the plaintiff. Thus, it would be clear that all the legal heirs of the testator Madurai Muthu Mudaliar have no objection for the probate being issued in favour of the plaintiff.
23. In order to prove Ex.P1 testament, the propounder apart from examining himself as PW1, has examined P.Ws.2 and 3. P.W.2 Mr.Baskaran, one of the attesting witnesses has categorically deposed that his father was a very good friend of Madurai Muthu Mudaliar; that a request was made to his father to come for attesting a Will; that due to ill health, his father could not go, but has asked him to go, and hence, he went to the house of the testator; that the said Madurai Muthu Mudaliar signed in the Will in his presence, and the second attesting witness was also present, and thereafter, himself and the second attesting witness signed in the document immediately in the presence of each other and the testator; that the testator was in a sound health at the time of execution of the Will; and that there was no force or coercion exercised upon the testator to sign the Will. The cross examination of the said witness has not brought forth any circumstance to entertain any doubt over his testimony. At the earliest an affidavit of the said witness has also been filed under Ex.P15. The fact that the father of PW2 was a friend of Madurai Muthu Mudaliar is not disputed by the defendants' side. The evidence of PW2 is natural, trustworthy and acceptable, regarding the execution of the document by the testator and attestation of the same by himself and the other attesting witness.
24. Added further, the propounder has examined P.W.3 Mr.S. Sattanathan, a retired teacher, who happened to be a tenant in the property from 1953. The said witness has deposed that on request by the testator, he went to the Sub Registrar's Office, Periamet, opposite to Everest Hotel in 1968 and signed in Ex.P1 Will as the first identifying witness on the rear side of first page of Ex.P1 Will. The witness has also added that the registration of the Will had taken place at 2.00 P.M. in the Sub Registrar's Office, and the said Madurai Muthu Mudaliar was in a sound health and disposing state of mind. From the evidence of the witnesses stated above, it would be abundantly clear that at the relevant time, Madurai Muthu Mudaliar was in a sound and disposing state of mind. It has to be stated that not even a suggestion was put to either of the witnesses (PWs 2 and 3) questioning the state of mind of the testator at the relevant point of time. No material is available to show or indicate that Ex.P1 testament was tainted with any one of the invalidating factors like coercion, undue influence, fraud, misrepresentation, etc.
25. Many are the circumstances which are indicative of the truth and genuineness of Ex.P1 testament. Ex.P1 Will is a registered document. The testator has executed the same on 6.5.1968 and has taken care to see its registration on the very day. The testator has made a thorough narration as to the acquisition of the properties in question, and how they should be dealt with by the executor. While making the disposition, the testator has created so many duties to be performed by the executor. The recitals in the Will under Ex.P1 would clearly indicate that he was mindful of the maintenance of his wife and unmarried and eye defective daughter till their life time, performance of the marriage of another unmarried daughter and his son, discharge of the then existing debts. It cannot be stated that there was either any unlawful exclusion of or unreasonable disposition of the properties to, any one of the heirs, thereby casting a doubt on the testament. It is not the case of the contesting defendants that the propounder and the executor viz. the plaintiff had any role to play either in the preparation, execution, attestation or registration of the document. PW1 has categorically deposed that he was absent at Delhi at the time of the execution and registration of the Will, which fact is not disputed by the defendants' side. Thus, it would be clear that the propounder had no occasion to exercise any undue influence over the testator during the relevant time. The first son of the testator Selvasigamani and the third son Kamalanathan made an application before this Court in Application No.2415 of 1982 in the matter of the estate of the deceased Madurai Muthu Mudaliar, a copy of which is marked as Ex.D5, seeking a direction against the propounder/plaintiff to produce the Will of their father Madurai Muthu Mudaliar, which was in the custody of the respondent therein. The affidavit filed in support of the application reads as follows: "I submit that the father of the applicants and respondent herein died at Madras on 10.7.1971 leaving behind the applicants and respondent as his legal heirs to succeed his estate. I submit that the father of the applicants executed a Will dated 6.5.1968 and as per the Will, he has appointed the respondent herein as an Executor. I respectfully submit that in spite of repeated demands and lawyer's notice dated 8.3.1982, the respondent has not taken any steps whatsoever for probate of the Will."
26. The said Selvasigamani issued a lawyer's notice under Ex.D6 dated 11.12.1980 which reads as follows: "Before concluding I may also add that your relying on the WILL executed and registered by your father will be of no avail in view of the fact that he had no authority or power to execute any WILL in respect of joint family and ancestral property characterising it as self acquired." Both the recitals under Exs.B5 and B6 as shown above would clearly indicate that the other two sons of the testator had full knowledge as to the execution of the testament and its existence. Having applied before this Court seeking a direction against the plaintiff executor to produce the original Will executed by his father Madurai Muthu Mudaliar on 6.5.1968, the said Selvasigamani could not now deny the execution or truth and genuineness of the said document. Knowing fully well about the same, the said Selvasigamani has neither appeared nor opposed the grant of probate, though he has taken out a caveat in this proceedings.
27. The first plaintiff in the partition suit has categorically admitted that his father Selvasigamani was coming to court and was attending the proceedings, which would be indicative of the fact that the suit for partition was at the instigation of the said Selvasigamani, as could be well seen under the stated circumstances and as rightly pointed out by the learned counsel for the plaintiff-propounder.
28. Pointing to Order 25 Rule 9 of Original Side Rules, the learned Counsel for the defendants would submit that the propounder has initiated the proceedings seeking the probate nearly after a period of 16 years from the time of death of the testator, and thus, it was clearly barred by limitation and there are latches on the part of the executor/plaintiff, who has come to court only with an intention to defeat the rightful claims and shares of the defendants. In answer to the said contention, the learned counsel for the propounder would submit that no question of limitation would arise in the case of initiation of proceedings for issue of probate or letters of administration; that the probate proceedings were for the purpose of establishing the genuineness and the due execution of the Will, and the delay that has occurred in the initiation of the proceedings has been well explained by the executor by proper pleading and evidence also.
29. At this juncture, it has become necessary to advert to the question whether the law has prescribed any period of limitation to apply for grant of probate or letters of administration with or without the Will annexed. Applications made to probate the Will or seeking letters of administration are not governed by the Law of Limitation. But they are exempted from the operation of the Limitation Act. Since those applications are in the nature of obligations seeking recognition as a testamentary trustee or for permission to perform the duties created in the testament. Needless to say that the cause of action arises and continues to exist so long as the testament remains unprobated. The right to apply continues so long as the object of the trust exists or any part of the trust remains to be executed. When there is positive proof of execution of the testament by acceptable and convincing oral and documentary evidence, delay by itself cannot be a ground for refusing the grant of probate. Order 25 of Original Side Rules deals with the testamentary and intestate matters. Rule 9 under Order 25 relied on by the objectors' side reads: "In any case where probate or letters of administration is for first time applied for after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the petition." It is pertinent to note that no specific period is prescribed for making any application for the grant of probate or letters of administration. But in any given case where the application for the said relief was made after the lapse of three years from the time of death of the deceased, the reason for such delay has to be explained in the petition. Hence, it would be abundantly clear from the said Rule that when any application is made after three years for the probate or letters of administration for the first time, the propounder should make the specific averments explaining the reasons for the delay so caused.
30. A Division Bench of this Court had an occasion to consider whether Article 137 of the Limitation Act is applicable to the proceedings filed for grant of probate or letters of administration with or without the Will annexed, in S.Krishnaswami's case reported in 1990 TLNJ 184. Answering to the said question, the Division bench has held as follows: "We have now as per our preceding discussion, settled the question and we hold that Article 137 of the Limitation Act would not apply to proceedings filed for grant of probate or letters of administration with or without the Will annexed. Before concluding, we must point out that though the proceedings filed for grant of probate or letters of administration may not come within the mischief of Article 137 of the Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of the Will propounded. Delay in taking steps gives rise to suspicion and the longer the delay the stronger the suspicion. This is an aspect for consideration of the Court while dealing with the request. We can only leave this aspect at that. Now we have answered the References, the matters will have to go before the learned single Judge, who could deal with them on merits." From the decision of the Division Bench, it would be clear that the proceedings initiated for grant of probate or letters of administration will not come within the mischief of Article 137 of the Limitation Act 1963. But the Court has to consider the question of delay in order to test the genuineness of the Will propounded. It is true that one of the circumstances that may throw suspicion on the truth and genuineness of the Will propounded is the delay caused in the initiation of the proceedings for probate or letters of administration. It is also true that the longer the delay, in the initiation of the proceedings, the stronger the suspicion. But the delay so caused in the initiation of proceedings can only be used as one of the circumstances to test the genuineness of the Will. In a given case, if the court after careful analysis of the evidence, is of the considered view that the Will propounded is proved by sufficient and satisfactory evidence, as required by law, and inspires the confidence of the court, in the absence of any other circumstance throwing suspicion on the truth and genuineness of the Will, the Court should not reject any application seeking for grant of probate or letters of administration solely on the ground of delay. Whenever there is a longer delay in the initiation of the proceedings, a duty is cast upon the propounder to explain the reasons and circumstances as to how such delay was caused, and the Court has to necessarily consider whether such a delay is properly explained by the propounder in his pleadings and by adducing satisfactory evidence in that regard, since the delay aspect is one of the relevant, though not decisive, factors to test the genuineness of the will propounded.
31. In the instant case, admittedly, Ex.P1 document was executed on 6.5.1968 and the testator also died on 10.7.1971. It is also true that the propounder has not initiated the proceedings within three years from the time of the death of the testator. In order to explain the delay, that has occasioned in filing the proceedings, the plaintiff has specifically averred in the plaint as follows:
"Firstly, the petitioner was under the impression that the petitioner's elder brother having filed the application No.2415/82 in the High Court of Madras along with my younger brother P.M.Kamalanathan, would proceed further in the matter because he is now making a different claim through his sons, secondly there is no possibility for any amicable settlement between the petitioner on one side and petitioner's elder brother P.M.Selvasigamani and his sons in the other side and any amount of persuasion by the elders was not heeded to by the petitioner's eldest brother and his two sons, and thirdly because the petitioner's eldest brother's sons, the plaintiffs in C.S.No.3192/83 have been falsely alleging that the property in the hands of the deceased P. K.Madurai Muthu Mudaliar was ancestral even though it has been specifically and categorically mentioned in the will that the property in the possession of the deceased P.K.Madurai Muthu Mudaliar were all self acquired. The said will had to be filed as one of the documentary evidences, but the same could not be made use of as the will had not been probated. Hence the delay in filing this petition may be condoned as the delay was neither wilful nor wanton but because the petitioner sincerely felt that the matter could be settled amicably among all the heirs of the deceased P.K.Madurai Muthu Mudaliar." The plaintiff has also categorically deposed the reasons for the delay caused in filing the O.P. for probate. Considering the sequence of events and the circumstances, the court is of the view that the delay that has occasioned in initiating the probate proceedings is neither wanton nor deliberate.
32. It is not in dispute that the immovable properties found under the Will were under the management of the testator till his life time. From the averments in the pleadings and the evidence, it could be well seen that all the members of the family were living jointly from the time of the death of the testator viz. 1971 till 1985, and during the said period, the properties were under the management of the executor. The case of the propounder that from and out of the income of the said immovable properties, the widow and the unmarried daughter of the testator were maintained; and that he has performed the marriages of the unmarried daughter and son of the testator and discharged a part of the debts of the testator is not disputed by the other side. The two other sons of the testator have made an application in this Court in Application No.2415 of 1982 as found under Ex.D5 against the executor for the production of the original Will, which created an impression in the mind of the executor that his elder brother would have initiated probate proceedings. It is also an admitted position that all other heirs of the testator except the son Selvasigamani have executed release deed in favour of the executor in the year 1983 by receiving consideration in respect of their shares. Consequent upon the said release deed, Selvasigamani who did not join others in the release deed, has instigated his sons to file a suit for partition wherein he has remained exparte. Taking into consideration all the above, the court is of the view that the executor has explained the delay by sufficient cause.
33. The Apex Court has held in a decision reported in AIR 1982 SC 13 3 (INDU BALA BOSE AND OTHERS VS. MANINDRA CHANDRA BOSE AND ANOTHER), as follows: "The mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by S.63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a 'suspicious' circumstance. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person."
34. It has also been held by the Supreme Court in a decision reported in AIR 1998 SC 2861 (GURDIAL KAUR AND OTHERS VS. KARTAR KAUR AND OTHERS): "The law is well stated that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925, but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel suspicious circumstance."
35. The above tests if applied to the present facts of the case, the court without any hesitation has to necessarily hold that the plaintiff has discharged the onus of proving the Will by proving the testamentary capacity and the signature of the testator as expected by law. It is pertinent to note that the court is unable to see any suspicious circumstance attendant on the testament. No material is available to indicate that the testament suffers from any invalidating factors, and hence, it has to be held that the plaintiff has proved that Ex.P1 Will was executed by Madurai Muthu Mudaliar in a good and sound disposing state of mind, and that the plaintiff is entitled to the relief of probate. All the above issues are answered accordingly.
36. In the result, T.O.S.No.36/87 is decreed. Issue probate in favour of the plaintiff. There shall be no order as to the costs.
37. In the result, C.S.1620/93 is dismissed, leaving the parties to bear their costs.
12-6-2002 T.O.S.36/87:
Plaintiff's side witnesses: PW1 P.M.Mani PW2 M.Baskaran PW3 S.Sattanathan Defendants' side witnesses: DW1 P.S.Mohankumar C.S.1620/93: Plaintiffs' side witness: PW1 Mohankumar Defendants' side witness: DW1 P.M.Mani TOS 36/87: Plaintiff's side Exhibits:
Ex.P1 6.5.1968 Registered Will executed by Madurai Muthu Mudaliar P2 26.2.47 Certified copy of sale deed P3 Death certificate P4 22.6.1908 Certified copy of sale deed P5 10.5.61 Certified copy of Will of Thangavelu Mudaliar P6 Xerox copy of probate granted by the High Court in respect of Ex.P5 Will P7 Land acquisition proceedings P8 3.6.1909 Release deed of Balasundara Mudaliar P9 Service certificate of Madurai Muthu Mudaliar P10 -do-
P11 -do-
P12 -do-
P13 17.7.31 Copy of sale deed
P14 27.2.36 -do-
P15 28.5.87 Affidavit of attesting witness Mr.M. Baskaran P16 17.12.45 Deed of partition among Thangavelu and Madurai Muthu and LR's of Rajagopal Mudaliar P17 2.7.30 Sale deed in favour of Rajagopal and his brothers Thangavelu and Madurai muthu P18 3.3.83 Release deed by Karpagambal, PM Kamalanathan, Pushpaveni, Mangalaveni, Hansa veni, Pankajam in favour of PM Mani P19 22.12.31 Sale deed by Ranganatha Mudaliar and another in favour of Rajagopal and two others P20 26.4.85 Letter of Selvasigamani to PM Mani Defendants' side Exhibits:
Ex.D1 Corporation extract of item A of plaint schedule
D2 Kist particulars of item B of plaint schedule
D3 3.3.83 Release deed
D4 16.4.56 Sale deed by Madurai Muthu Mudaliar to
J.D.Subramonia Mudaliar
D5 Copy of application in TOS affidavit and master
summons for directing the plaintiff in TOS to produce
the Will
D6 11.12.86 Notice by the counsel for 1st defendant in CS
1620/93 to 2nd defendant in TOS
D7 Birth certificate of 2nd defendant's daughter
12-6-2002
nsv/
M.CHOCKALINGAM, J.