Madras High Court
R.Peter P.Rayan vs ) Stella Kanagaraj on 29 April, 2010
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/04/2010 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.(MD) No.12 of 2011 R.Peter P.Rayan ... Appellant for himself and on behalf of Annai Velankanni Charitable Trust Vs. 1) Stella Kanagaraj 2) Joseph Anthony Arokkia Selvi 3) K.Mohanraj 4) Parvathy 5) Arockia Mary 6) Radhakrishnan ... Respondents Appeal suit filed under Section 96 CPC against the judgment and decree of the 1st Additional District Judge, Tirunelveli in O.S.No.1 of 2005 dated 23.12.2009 and set aside the same and dismiss the suit with costs of the appellant/defendant. !For Appellant ... Mr.J.Ashok, for M/s.Jayapaul Associates ^For Respondents... Mr.M.V.Venkataseshan (R1 & R2) Mr.T.S.Mohammed Mohideen (R3 to R6) :JUDGMENT
The first defendant in O.S.No.1/2005 on the file of the I Additional District Judge, Tirunelveli, is the appellant herein. The said suit was filed by the respondents 1 and 2 herein against the appellant and respondents 3 to 6 in the appeal. The suit was filed for declaration of title in respect of the suit properties and permanent injunction and also for a direction against the appellant and respondents 3 to 6 to hand over the lorry bearing Registration No.TN 72 C-7578 and an Ambassador car bearing Registration No.TCT 7085 and also for costs.
2. The plaint averments in brief are as follows:-
i) The properties described in the schedule annexed to the plaint were that of late T.Kanagaraj. Mrs.Stella Kanagaraj, the first respondent/first plaintiff and Mrs.Joseph Anthony Arokkia Selvi, the second respondent/second plaintiff are, respectively the wife and daughter of late T.Kanagaraj. Late T.Kanagaraj was suffering from acute diabetics due to which his kidney and vision were affected and he was put on dialysis for about 2 years prior to his death. The entire administration of the bone mill run by him and the kalyana mandapam owned by him called "Holy Mother Palace" was with the third respondent/second defendant. He was virtually in possession of all the documents and cheque books of late Kanagaraj. Parvathy, the 4th respondent/3rd defendant is the concubine of late T.Kanagaraj. Arockia Mary, the 5th respondent/4th defendant is the daughter of Parvathy and the 6th respondent/5th defendant Radhakrishnan is her husband. The appellant/first defendant and respondents 3 to 6/defendants 2 to 5 jointly hatched out a plan to usurp the properties of late T.Kanagaraj and they put their plan in action by forming a trust and creating a Will. Late T.Kanagaraj died intestate and under law the respondents 1 and 2/plaintiffs 1 and 2 alone inherited the plaint schedule properties left by the said Kanagaraj. Since the 3rd respondent/2nd defendant Mohanraj was the Manager of the bone mill and was also handling the two cars and one lorry owned by the said Kanagaraj, he stealthily screened one of the cars, namely Ambassador car bearing Registration No.TCT 7085 and the lorry bearing Registration No.TN 72 C-7578 in the guise of business transaction. He also removed the original documents pertaining to the kalyana mandapam called "Holy Mother Palace" and also the blank cheque leaves with the signatures of late T.Kanagaraj. The appellant/first defendant and the respondents 3 to 6/defendants 2 to 5 claimed that the trust was formed by the appellant and Late Kanagaraj bequeathed his properties under a Will dated 05.11.2004 and that the properties came to be vested with the trust on the death of Kanagaraj on 26.12.2004. When the said claim was made known to the respondents 1 and 2/plaintiffs, they made verification and found that the Will dated 05.11.2004 was a rank forgery and the trust was a pseudo trust. A suitable reply to the notice was issued denying the alleged disposition made in the said will propounded by the appellant/first defendant and respondents 3 to 6/defendants 2 to 5 and stating that the same was unnatural since the wife and legitimate daughter of the alleged testator had been totally disinherited. Leaving certain properties in respect of which Kanagaraj had got a loan to the tune of about 29.00 lakhs, the un-encumbered properties alone were sought to be bequeathed in favour of the trust. The respondents 1 and 2/plaintiffs are in possession and enjoyment of all the properties of Kanagaraj, including "Annai Velankanni Matha Kebi" in respect of which certain kattalais have been incorporated in the Will.
The respondents 1 and 2/plaintiffs, being the legal heirs of late Kanagaraj and who are in possession and enjoyment of the suit properties, are entitled to get a declaration and permanent injunction against the appellant/first defendant and respondents 3 to 6/defendants 2 to 5, since they tried to take possession of the suit properties and cause hindrance to the plaintiffs' peaceful possession and enjoyment of the same. The first and second defendant came with their henchmen and threatened to dispossess the plaintiffs on 14.01.2005. Hence the suit for the above said reliefs.
3. Initially Peter P.Rayan, in his individual capacity, had been shown to be the first defendant. Since an objection to the suit had been raised by the defendants as to its maintainability without impleading "Annai Velankanni Matha Kebi Charitable Trust", which had been made the major beneficiary of the Will, the plaintiffs subsequently amended the short and long cause titles stating that Peter P.Rayan was sued as the first defendant in his individual capacity and in the capacity as the Managing Trustee of the said Trust. In the Written Statement filed before such amendment, the first defendant simply denied the averments made in the plaint and in addition to that made the following averments:-
A trust called "Annai Velankanni Matha Kebi Charitable Trust" was created by late T.Kanagaraj with Peter P. Rayan as its Managing Trustee and 10 others as its trustees. After creation of the trust, late T.Kanagaraj executed a registered Will dated 05.11.2004 bequeathing some of his properties in favour of the Trust with directions to apply a portion of the income from the said properties for specific purposes. He has directed payment of a sum of Rs.5,000/- per month to his second wife Parvathy, the third defendant. He has also directed spending of a sum of Rs.15,000/- per annum for providing three times food to the devotees attending the festival at St. Joseph Church (g[dpj R{irag;gh Myak;;) situated in Karunkulam and a sum of Rs.1,00,000/- for conducting annual festival of Annai Velankanni Matha Kebi and also some amount for some other purposes. After having executed the said Will, T.Kanagaraj passed away on 26.12.2004. On his death, the Will came to effect and the suit properties became the properties of the Trust. By virtue of the said Will, the trustees of the above said Trust are in possession and enjoyment of the suit properties. The respondents 1 and 2/plaintiffs 1 and 2, at no point of time, were in possession and enjoyment of the suit properties. The respondents 1 and 2/plaintiffs failed to maintain T.Kanagaraj in his last days and in fact they were not living with him. The suit has not been properly valued and grossly inadequate court fee has been paid. The cause of action alleged is imaginary and hence the suit is liable to be dismissed.
4. After the amendment of the description of the first defendant in the short and long cause titles, an additional written statement was filed by the first defendant contending the following contentions in brief:-
The amendment of the short and long cause titles would not affect the Trust since all the trustees of Annai Velankanni Matha Kebi Charitable Trust have not been impleaded as parties. The defect found in the original plaint remains uncured. At no point of time, the respondents 1 and 2/plaintiffs 1 and 2 were in possession of the plaint schedule properties and they are not in possession and enjoyment of the same. The suit properties originally belonged to late T.Kanagaraj and as per his Will the same stand vested with "Annai Velankanni Matha Kebi Charitable Trust". Peter P.Rayan, who is the Managing Trustee of the Trust has to maintain and manage all the properties on behalf of the Trust. The cause title, even after amendment, is not correct and the suit is liable to be dismissed.
5. The defendants 2 to 5 contested the suit on the basis of the Written Statement filed by the second defendant, which was adopted by the defendants 3 to 5. In the said Written Statement, like the first defendant, they have chosen to make specific denial of parawar averments made in the plaint and in addition to that, they have made the following averments:-
Late T.Kanagaraj purchased so many properties out of his hard earnings. Relationship between the plaintiffs and Kangaraj was not cordial. With the intention of creating a secular and non-profitable endowment for public charitable purposes, the first defendant created a Trust under a registered Trust Deed dated 04.11.2004 in the name of "Annai Velankanni Matha Kebi Charitable Trust" with himself as the Managing Trustee and 10 others as trustees. Out of those persons, the Managing Trustee and 2 others alone have been made parties to the suit and arrayed as second and fourth defendants. The Trust and the other trustees of the said Trust are necessary parties and the non-impleadment of the Trust and other trustees will make the suit bad for non- joinder of necessary parties. Late T.Kanagaraj, with the intention of fulfilling his ambitions, executed a registered Will dated 05.11.2004 bequeathing the suit properties to the Trust. On the death of Kanagaraj the said Will came into effect and the properties are now with the Trust. During his life time, plaintiffs did not take care of Kanagaraj and almost he was abandoned by them and hence he was spending his last days in the kalyana mandapam. Plaintiffs do not have any right over the plaint schedule properties and the Trust alone is entitled to the same. The Trust is in possession and enjoyment of the suit properties. The cause of action alleged in the plaint is imaginary. The suit is not maintainable and the same is liable to be dismissed.
6. The following issues were framed by the trial court based on the above said pleadings:-
1)Whether the 1st plaintiff is the wife and 2nd plaintiff is the daughter of T.Kanagaraj?
2)Whether the 3rd defendant is the wife and 4th defendant is the daughter of T.Kanagaraj?
3)Whether the "Annai Velankanni Matha Kebi Charitable Trust" was formed by T.Kanagaraj?
4)Whether T.Kanagaraj has executed a Will on 05.11.2004 in favour of Annai Velankanni Matha Kebi Charitable Trust? If so whether it is genuine and valid?
5)Whether the plaintiffs are entitled for a declaration that the suit properties belong to them?
6)Whether the suit properties in schedules 1 to 4 are in possession and enjoyment of the plaintiffs?
7)Whether the plaintiffs are entitled for injunction as prayed for regarding the properties in schedules 1 to 4 in the plaint?
8)Whether the plaintiffs are entitled for recovery of possession of the v schedule property from the 2nd defendant?
9)Whether the Trustees in Annai Velankanni Charitable Trust are necessary and property parties in the suit and whether the suit is bad for non-joinder of necessary and proper parties?
10)To what other relief the parties are entitled to?
7. Two witnesses were examined as P.Ws.1 and 2 and 140 documents were marked as Exs.A1 to A140 on the side of the plaintiffs. Six witnesses were examined as D.Ws.1 to 6 and 29 documents were marked as Exs.B1 to B29 on the side of the defendants. The learned trial judge, at the conclusion of trial, heard the arguments advanced on both sides and considered the pleadings and the evidence in the light of the points urged in the arguments. Upon such consideration, the learned trial judge decided all the issues in favour of the plaintiffs and decreed the suit as prayed for with cost, by the impugned judgment and decree dated 23.12.2009. Aggrieved by and challenging the same, the first defendant (appellant) has come forward with the present appeal on various grounds set out in the memorandum of appeal.
8. The respondents have entered appearance through counsel. Records were also sent for from the court below and are available for reference in this appeal. The arguments advanced by Mr.J.Ashok, learned counsel appearing for the appellant, by Mr.M.V.Venkatasesha, learned counsel appearing for the respondents 1 and 2 and by Mr.T.S.Mohammed Mohideen, learned counsel for the respondents 3 to 6 were heard. The materials available on record were also perused.
9.The points that have arisen for consideration in this appeal are as follows:
1)Whether Stella Kanagaraj, the first respondent in the appeal / the first plaintiff in the suit and Joseph Anthony Arokia Selvi, the second respondent in the appeal/the second plaintiff in the suit are, respectively, the wife and daughter of Late T.Kanagaraj?
2)Whether Parvathy, the fourth respondent / 3rd defendant and Arokia Mary, the 5th respondent / 4th defendant in the suit are, respectively the wife and daughter of Late T.Kanagaraj?
3)Whether the Will dated 05.11.2004 of Late T.Kanagaraj is genuine and valid?
4)Whether the suit is bad for non-joinder of necessary parties?
5)Whether the respondents 1 to 2 /plaintiffs are entitled to the reliefs of declaration and injunction as prayed for?
6)Whether respondents 1 and 3 / plaintiffs are entitled to the relief of recovery of the plaint 5th schedule property from Respondent No.3/second defendant?
10.The first defendant in the original suit is the appellant in the appeal. The defendants 2 to 5 in the suit are the respondents 3 to 6 in the appeal. The plaintiffs in the suit figure as respondents 1 and 2 in the appeal. For the sake of convenience, hereafter the parties are referred to in accordance with their rankings in the original suit and if necessary, at appropriate places, in addition their rankings in the appeal may also appear.
Point No.1:
11. Though the defendants in the suit had denied the plaint averment that the first and second plaintiffs are the wife and daughter of late T.Kanagaraj, the said denial was only a general denial and in fact the written statement contains an admission regarding the relationship by stating that in his last days of life T.Kanagaraj was left without any care from his family; that the plaintiffs failed to take care of him and that he spent his last days almost in the kalyana mandapam. Apart from the same, there are admissions by the witnesses examined on the side of the defendants regarding the relationship of the plaintiffs with late T.Kanagaraj. In view of the admission, the finding of the trial court on issue No.1 framed in the suit turns out to be one unassailable. That is the reason why the defendants have not chosen to contend that the first plaintiff is not the wife of Kanagaraj and the second plaintiff is not the daughter of Kanagaraj. In fact during arguments also, the learned counsel for the appellant as well as respondents 3 to 6 submitted that there is no dispute regarding claim of the plaintiffs to be the wife and daughter of Kanagaraj. Nothing more is needed to arrive at the conclusion that the first plaintiff is the wife of late Kanagaraj and the second plaintiff is the daughter of late Kanagaraj. In fact the 4th defendant while deposing as D.W.4 has made a clear admission that the plaintiffs 1 and 2 are mother and daughter and the first plaintiff is the senior wife of late Kanagaraj. She has also admitted that the averments made in the written statement to the effect that the first plaintiff is not the legally wedded wife of Kanagaraj and the second plaintiff is not their daughter is erroneous and an error has committed stating so in the written statement. In view of the same, the question whether the first and second plaintiffs are the wife and daughter of late Kanagaraj is a closed issue and the same does not arise for consideration in this appeal as it has been admitted by the defendants that the plaintiffs are the wife and daughter of late Kanagaraj. Therefore, the finding of the court below that the 3rd defendant Parvathy is not the legally wedded wife of late Kanagaraj does not warrant any interference.
Point No.2
12. The next issue framed by the trial court is regarding the claim of the defendants that the third defendant is the wife of Kanagarajand the 4th defendant is the daughter of late T.Kangaraj. In fact in Ex.B2-Trust Deed they are referred to as the second wife and daughter through the second wife respectively. It is a fact not in dispute that the first plaintiff is the wife of late Kanagaraj and the second plaintiff is the daughter of late Kanagaraj born through the first plaintiff. The same has been decided so in issue No.1 by the trial court and this court in the foregoing paragraph has adverted to the same and held that the said finding of the trial court deserves to be confirmed.
It is not the case of any one of the defendants that the marriage between Kanagaraj and the first plaintiff was either invalid in law or got dissolved in a method known to law. Under such circumstances, though the 3rd defendant is stated to be the second wife of Kanagaraj, even assuming that such a marriage ceremony might have taken place, the said marriage shall be null and void and will not create any legal relationship of husband and wife. The alleged marriage of Kanagaraj with the third defendant during the life time of the first wife, is null and void and the 3rd defendant Parvathy would not have got the status of wife. At the same time, it should also be remembered that it is not the definite case of the plaintiffs that the 3rd defendant Parvathy is an alien to Kanagaraj and the 4th defendant Arockia Mary is not the daughter born to Kanagaraj through the third defendant. On the other hand, they have contended that the third defendant was a concubine of Kanagaraj and the 4th defendant was born to her and Kanagaraj because of the concubinage. But, no concrete evidence has been adduced on either side to prove either that there was a marriage between Kanagaraj and Parvathy which would be null and void because of the subsistence of the marriage of Kanagaraj with the first plaintiff or that they did not undergo any ceremony of marriage. The preponderance of evidence would show that late Kanagaraj and Parvathy (3rd defendant) were living together as husband and wife, as a result of which the 4th defendant was born to them. The plaintiffs are also not in a position to deny the fact that the 4th defendant is a daughter of Kanagaraj born through the 3rd defendant. On the other hand, the plaintiffs would contend that the 4th defendant was only an illegitimate daughter of Kanagaraj. Admittedly, the 3rd defendant Parvathy is a Hindu and late Kangaraj was a christian by religion. As per Section 4 of the Indian Christian Marriage Act, 1872, a marriage between two persons, of whom one at least is a Christian, should be solemnised in accordance with the said Act, otherwise the same would be invalid and of no effect. The only exception to the said provision is a marriage registered under the Special Marriage Act, 1954 which permits any two persons having capacity to marry can get married under the Special Marriage Act. It is not the case of the defendants that late Kanagaraj married Parvathy (3rd defendant) either under Indian Christian Marriage Act or under Special Marriage Act. If it was done so, the same should have been performed in the presence of the Marriage Registrar and the marriage ought to have been registered under the Act and the same could be proved by production of the marriage certificate issued by the Marriage Registrar. No such evidence is adduced in this case. The learned trial judge has also referred to Section 7(a) of the Hindu Marriage Act under which "Seerthiruttha marriage" in between Hindus were validated in Tamil Nadu and rightly observed that the benefit of said provision will not be available to late Kanagaraj and Parvathy, since one of them was a Christian and the marriage between a Christian and a Hindu could be validly performed either in accordance with the Indian Christian Marriage Act or in accordance with the Special Marriage Act. Therefore, the finding of the court below that the 3rd defendant Parvathy is not the wife of late Kanagaraj cannot be said to be defective or infirm and the same deserves approval.
13. However, the learned trial judge has omitted to consider the question whether the 4th defendant is the daughter of late Kanagaraj even though the second issue incorporates in itself the said question also. In this regard, as pointed out supra, it is the admitted case of both parties that she is the daughter of late Kanagaraj born through the third defendant. Therefore, no one can dispute the fact that she is the daughter of late Kanagaraj. The only question that arises for consideration is whether she is a legitimate or illegitimate daughter of Kanagaraj. The marriage between her mother and father having not been proved to be a valid marriage and on the other hand, was proved to be invalid in law, the 4th defendant could at best be regarded as the illegitimate daughter of late Kanagaraj. But the same is without any consequence, because neither the 3rd defendant nor the 4th defendant claims title or right to the properties of late Kanagaraj, as his legal heirs by way of intestate succession. On the other hand, they claim to be minor beneficiaries of the Will of late Kanagaraj, since major beneficiary happened to be Annai Velankanni Mathi Kebi Charitable Trust. Testamentary power of a christian is not restricted and he can bequeath his property to a concubine or to an illegitimate child or even to a stranger.
Point No.4:
14.The suit was originally filed showing Peter P. Rayan as the first defendant. Since an objection was raised to the maintainability of the suit on the ground that Annai Velankanni Matha Kebi Charitable Trust was a necessary party and the suit without making the Trust a party was bad for non-joinder of necessary parties, the plaintiffs, after getting necessary orders for amendment, amended the short and long cause titles by describing Peter P.Rayan to be the person sued in his personal capacity and also in his capacity as the Managing Trustee of Annai Velankanni Matha Kebi Charitable Trust. Even after such amendment, since the Trust has not been shown to be a separate defendant and eight of the trustees of the said trust have not been added as parties, the defendants have raised a plea that the defect of non-joinder of necessary party remains not cured and that on the ground of non-joinder of necessary parties, the suit is liable to be dismissed. The Court below on appreciation of the pleadings and evidence has arrived at a correct conclusion that by the amendment "Annai Velankanni Matha Kebi Charitable Trust" has been made a party defendant and when the Trust itself has been made a party - defendant, there is no necessary to implead all the trustees of the Trust as party defendants. In fact in the appeal, the learned counsel for the appellant (first defendant) has not advanced any argument based on the plea of non-joinder of necessary parties and on the other hand, has fairly conceded that the plea of non-joinder of necessary party is not avilable to the defendants after the amendment of the cause title making the trust a party to the suit. The said finding of the Court below that the suit is not bad for non-joinder of necessary parties deserves no interference.
Point Nos.3, 5 and 6:
15. The next question that arises for consideration is whether the Will dated 05.11.2004 allegedly left by late Kanagaraj is a genuine and valid one? The respondents 1 and 2 / plaintiffs claim that the suit Will is not a genuine one and cannot be relied upon based on their following contentions:
i)The suit Will was brought into existence by a rank forgery of the second defendant, who was looking after the business of late Kanagaraj and was in possession of all his documents and cheque books;
ii)The alleged testator Kanagaraj was suffering from acute diabetics, which had also resulted in renal complication (kidney failure) and he had been put on dialysis for about two years prior to his death on 26.12.2004;
iii)Late Kanagaraj could not have created the Will knowing fully well the nature of the document he was executing, since he was not having sound health and sound disposing state of mind on the alleged date of execution of Ex.B1-Will;
iv) The Will is surrounded by suspicious circumstances in so far as a Trust Deed was created on 04.11.2004 and the Will was executed on the very next day; and
v) The Will is unnatural since the legal heirs, namely the respondents 1 and 2/plaintiffs, who are the legally wedded wife and legitimate daughter of late Kanagaraj have been disinherited for no reason whatsoever.
16. Per contra, it is the contention of the appellant and respondents 3 to 6/defendants that the Trust was created and the Trust deed was executed on the advice of late Kanagaraj, who wanted to give some of his properties to the Trust with specific kattalais; that though late Kanagaraj was affected with diabetics and renal failure and was put on dialysis, he was mentally sound and he voluntarily executed Ex.B1-Will and got it registered in a sound disposing state of mind; that the contention of the respondents 1 and 2/plaintiffs that they have been totally disinherited is erroneous in so far as valuable properties like paper factory and bone mill were not bequeathed under the Will and kalyana mandapam and Annai Velankanni Matha Kebi alone were bequeathed under the Will; that late Kanagaraj made up his mind to make such a Will because he had been abandoned by his wife and daughter during his last days and all along he was in the kalyana mandapam taking dialysis treatment; that with philanthropic object late Kanagaraj executed the Will bequeathing the properties to the Trust and included a direction to give a sum of Rs.5,000/- per annum to the third defendant till her life time and after her life time to the fourth defendant and that the said direction was included in the Will, perhaps of his apprehension that their claim to be the legal heirs of late Kanagaraj would be resisted on the ground of absence of marital relationship/ invalidity of the marriage with the third defendant and illegitimacy of the fourth defendant.
17. There is no difference of opinion as to the proposition of law that the propounder of the Will is bound not only to prove the execution of the Will in the manner known to law, but also to explain and clear the suspicious circumstances, if any, surrounding the execution of the Will. Besides the production of the original registered Will (Ex.B1), the defendants have chosen to examine the attestors of the Will as D.Ws.2 and 4. In addition 1st, 2nd and 3rd defendants were examined as DWs.1, 3 and 5 respectively and one Murugesan was examined as D.W.6. Both the attestors, while deposing as DW-2 and DW-4 respectively, have given clear testimony regarding the voluntary execution of Ex.B1-Will on 05.11.2004. DW-2 was employed as a driver under late Kanagaraj. He has given clear testimony to the effect that at the office of the Sub Registrar late Kanagaraj showed the Will prepared by him bequeathing kalyana mandapam, Ambassador car, Maruthi car, lorry and Annai Velankanni Matha Kebi and a shop in it to be managed by the first defendant Peter P.Rayan and that Late Kanagaraj requested him to be an attestor of the Will. It is also his clear testimony that the testator Kanagaraj put his signature in his presence and he put his signature as a witness in the presence of Kanagaraj and that in addition to the same, he along with one Pushparaj signed the said document at the time of registration before the Sub Registrar an identifying witness also. Though there is no clear evidence in his chief examination regarding the other attestor of the Will, in cross-examination it was elicited that the 5th respondent/ 4th defendant Arockia Mary was the second attestor and both of them attested the Will in the presence of Kanagaraj. The 5th respondent/4th defendant deposed as D.W.4 and in her evidence she has stated that she along with her father, namely late Kanagaraj, D.W.2-Krsihnapillai and one Pushparaj went to the Sub Registrar office for the execution of the Will.
18. The second defendant Mohanrajan has figured as D.W.3. In his testimony he has deposed to the effect that on 05.11.2004 on the invitation of Kangaraj, he had gone to the Sub Registrar's office and there he saw Kanagaraj executing a Will by affixing his signature in it and D.W.2-Krishnapillai and D.W.4-Arockia Mary (4th defendant) attesting the said Will. In addition to that he has identified the signature found in Ex.B1-Will to be that of late Kanagaraj. Further, he has clearly stated about the health condition and mental status of late Kanagaraj on the date of execution of Ex.B1-Will and also the details of the bequest made under the Will. The third defendant Parvathy, who deposed as D.W.5 is none other than the mother of Arockia Mary (4th defenant/D.W.4). Her testimony lends corroboration to the testimonies of D.Ws.2 to 4. It is the evidence of D.W.5 (third defendant Parvathy) that late Kanagaraj informed her of his desire to give some of his properties to the Trust and requested her to send D.W.4 - Arockia Mary to be an attestor; that consequently D.W.4-Arockia Mary went to Palayamkottai on 05.11.2004 and that DW4 has signed as an attestor in the Will of late Kanagaraj.
19. On the other hand, the second plaintiff alone figured as P.W.1 on the side of the plaintiffs. Her mother, namely the first plaintiff did not enter the witness box. No doubt they have stated in the plaint that the Will had been brought into existence by rank forgery. But the second plaintiff, who deposed as P.W.1 has not denied in clear terms that the signature found in Ex.B1-Will is not that of her father late Kanagaraj. The case of the plaintiffs is not clear as to whether they do admit the signature found in Ex.B1 to be that of Kangaraj or that the Will is a forged one. A consideration of the entire testimony of P.W.1 would show that she did not even verify whether the Will was executed by late Kanagaraj or was a forged one. On the other hand, she has simply denied the genuineness of the Will on the assumption that her father Kanagaraj would not have executed such a Will. In this regard, it is pertinent to note that she made an admission to the effect that she did not see the Will and did not know whether the Will was a registered one or an unregistered one. She has also pleaded ignorance as to the persons who have attested the Will. It is also her evidence that though she would assert that the signature found in Ex.B1-Will is not that of her father, she could not say the basis for such assertion. For better appreciation, the relevant part of her evidence in the vernacular is extracted here under:-
"capypd; mriy ehd; vg;BghJk; ghh;f;ftpy;iy. capy; gjpt[ bra;ag;gl;ljh my;yJ gjpt[ bra;ag;gltpy;iy vd;W vdf;F bjhpahJ. capypy; ahh; rhl;rp ifbaGj;jpl;Ls;shh;fs; vd;W bjhpahJ. capy; gw;wpa tptuk; Bgg;gh; tpsk;guk; gw;wp ghh;j;jgpd;dh;jhd; vA;fSf;F bjhpe;jJ. capypy; cs;sJ vd; mg;ghtpd; ifbaGj;J ny;iy vd;gjhf vij mog;gilahf itj;J brhy;fpBwd; vd;why; bjhpatpy;iy."
Having stated so, P.W.1, at another place would venture to state that the signature of late Kanagaraj found in Ex.B1-Will was forged by the second defendant. P.W.1 would further state that the second defendant Mohanraj used to sign like her father Kanagaraj, but at the same time she has admitted that she had not seen him signing like Kangaraj and that the said statement was made by her on assumption. In yet another place, she would say that since she believed that her father would not have executed the Will, she contended that the Will was brought into existence by fraud, but she could not say any reason for such a belief. For better appreciation the relevant part of her evidence in the vernacular is extracted here under:-
"capy; Bkhroahf cUthf;fg;gl;Ls;sJ vd;W ehd; ve;j mog;gilapy; brhy;fpBwd; vd;why; vd; mg;gh mt;thW vGjpitf;fkhl;lhh;. mjw;fhd fhuzk; vJt[k; brhy;yKoahJ."
20. Further a consideration of the testimony of P.W.1 would show that she has not chosen to tell the truth before the court. It is pertinent to note that the plaintiffs have furnished the address of the third defendant Parvathy and the fourth defendant Arockia Mary to be "No.17 Kalpadi Street, Vadacherry, Nagercoil, Kanyakumari District". But it is curious to note that P.W.1 would state in her evidence that after the death of Kangaraj, there was a talk that the third defendant - Parvathy was the concubine of late Kangaraj and that was the reason why, Parvathy and her daughter Arockia Mary (fourth defendant ) were made parties to the suit and were arrayed as defendant Nos.3 and 4. But, at the same time she would also plead ignorance as to the source from which she got the address of defendants 3 and 4. It is pertinent to note that the address of the 4th defendant is found in Ex.B1-Will below her signature in the attesting portion of the Will.
21. The second plaintiff while deposing as P.W.1 was cautious enough to avoid admitting any kind of relationship between T.Kanagaraj and defendants 3 and 4 and she has stated that the fourth defendant is the daughter of the third defendant and the third defendant, started claiming to be the concubine of Kanagaraj after the death of Kanagaraj. In para v of the plaint they have averred that the third defendant was the concubine of late Kanagaraj. PW1 is not even ready to admit such a relationship, which had been averred by the plaintiffs themselves in the plaint. The same will show the conscious attempt to suppress the fact. Ex.B24 is the birth certificate of the fourth defendant issued by the Joint Sub Registrar No.II, Tirunelveli dated 30.05.1989. In the said document third defendant is shown to be the mother and Kanagaraj is shown to be the father. She was born on 12.05.1984 and the birth was registered on 14.05.1984 itself. The birth certificate was issued on 30.05.1989 itself. Exs.B25 and B26 are the photographs taken on the occasion of the marriage of the fourth defendant. Evidence has been adduced through D.W.4 that her mother Parvathy (3rd defendant) and late Kanagaraj, as her parents, performed her marriage with Radhakrishnan (D5) and that those photos were taken on the occasion of their marriage. Ex.B27 is a copy of the transfer certificate of the fourth defendant. In the said transfer certificate also Kanagaraj is shown as her father. The said transfer certificate was issued on 28.05.2001, a number of years prior to the date of death of kangaraj. It should be noticed that nowhere in the evidence of P.W.1 she has stated that Kanagaraj was not the father of fourth defendant - Arockia Mary or that the fourth defendant was the daughter of an other person. The plaintiffs have also not stated that the third defendant is the wife of another person and the fourth defendant was born to them. In this regard, the plea and evidence of the plaintiffs seem to be evasive. At the same time, the witnesses examined on the side of the defendants, who spoke to the effect that the third defendant-Parvathy was the second wife of Kanagarj and the fourth defendant - Arockia Mary was their daughter, they have not been cross-examined with any suggestion that the fourth defendant Arockia Mary was not the daughter of Kanagaraj or that the fourth defendant was the daughter of another person. The preponderance of oral evidence adduced on the side of the defendants and the documentary evidence in the form of Exs.B24 to B27 will probablise the case of the defendants that the fourth defendant Arockia Mary is the daughter of late Kanagaraj, born through the third defendant Parvathy.
22. Of course there is no documentary proof, apart from oral evidence that there was any marriage between Kanagarj and Parvathy. But the preponderance of evidence probablises the case of the defendants that for quite a long time, namely for more than 20 years, they were living as husband and wife and pursuant to such relationship, fourth defendant Arockia Mary was born. It should also be noticed that Parvathy is a Hindu and Kanagaraj was a Christian. It is the evidence of D.W.5 (third defendant) that Kanagaraj married her 33 years back and the marriage was conducted in a low profile by exchange of rings in front of the jothi (lamp). We have seen supra that a marriage to which one of the parties is a Christian, to be valid, should be solemnised in accordance with the Indian Christian Marriage Act, 1872 or under the Special Marriage Act, 1954. In either case, if the marriage of one of the parties with another person stands subsisting, the subsequent marriage will be null and void and in either case the third defendant will not get the status of wife of Kanagaraj. But that doesn't mean that the fourth defendant Arockia Mary could not be the daughter of Kanagaraj and she could not claim to be the daughter of Kangaraj. Defendants 3 and 4 do not claim any relief in the suit as non-testamentary legal heirs of late Kanagaraj. "Whether she could claim to be a non-testamentary legal heir as against the plaintiffs who are the legally wedded wife and legitimate daughter of Kanagaraj", is a different question which we need not go into in this case and a decision in respect of such an issue is unnecessary in this case. However, the relationship between the third defendant and Kanagaraj and the question whether 4th defendant was born to Kanagaraj through third defendant become relevant for deciding the question of genuineness of Ex.B1-will in so far as they are also shown to be the beneficiaries. Third defendant is to get a sum of Rs.5,000/- per month from the income derived from the suit properties till her life time. After the death of the third defendant, the said amount shall be paid to the fourth defendant as her legal heirs as per the terms of the Will. Third defendant - Parvathy is described to be the second wife of Kanagaraj in Ex.B1-Will. It is pertinent to note that fourth defendant-Arockia Mary happened to be one of the attestors of the Will Ex.B1. A beneficiary being an attestor of the Will and taking active part in the execution of the Will is of course one of the suspicious circumstances. Here 4th defendant is not the immediate beneficiary. It is the third defendant who is the beneficiary to get a sum of Rs.5,000/- per month till her life time from the income of the suit properties and only after her lifetime, the said amount would become payable to the fourth defendant and her legal heirs. When clear and unambiguous evidence is adduced regarding the execution of the Will by the testator and the attestation of the Will at the request of the testator, the mere fact that a minor beneficiary who is to get the benefit after the life time of another beneficiary chose to be an attestor shall not be the sole ground on which the genuineness of the Will can be negatived.
23. An attempt was made on behalf of the plaintiffs to show that the Will could have been a created one since the initial of Kangaraj is wrongly shown to be 'K' instead of 'T' by the defendants 3 and 4. Of course it is true that the fourth defendant, below her signature in Ex.B1-Will as an attestor, has written her husband's name and also father's name and while noting her father's name she has written as "K.Kanagaraj". The third defendant, while deposing as D.W.5 has given the initial of Kanagaraj to be "T.K.". In this regard, the fourth defendant, while deposing as D.W.4 was cross-examined by the counsel for the plaintiffs pointing out the fact that in Ex.B1-Will her father has signed as "T.Kanagaraj " and in Ex.B27-Transfer Certificate her father's name is noted as "K.Kanagaraj". The third defendant, while deposing as D.W.5, has given an explanation for the difference in initial by stating that the name of the grandfather of Kanagaraj was Kitheria and hence he was using 'K' also as his initial and in the school records he signed as "K.Kanagarj". The said testimony of D.W.5 was not successfully challenged by cross-examining her with a suggestion that the same was not true and Kangaraj never used "K" as his initial or that his grandfather's name was not Kitheria. Therefore, the said discrepancy pointed out on behalf of the plaintiffs stand properly explained.
24 We have already seen that the defendants have adduced sufficient and reliable evidence to the effect that Ex.B1-Will was executed by late Kanagaraj and the same was attested by D.W.2 and D.W.4. The genuineness of the Will is sought to be attacked by the plaintiffs also on the grounds that the said Will is unnatural Will in so far as it aims at disinheriting his legally wedded wife and legitimate daughter; that the testator was not in good health and sound disposing state of mind on the date of alleged execution of the Will and that the execution of the Will is surrounded by suspicious circumstances. Let us now consider whether the plaintiffs are able to substantiate the above said contentions and whether the defendants have explained the alleged suspicious circumstances surrounding the execution of the Will.
25. It is true that the plaintiffs are the legally wedded wife and legitimate daughter of Kanagaraj and that they are not given any property under Ex.B1-Will. But the said fact alone will not be enough to hold that they have sought to be totally disinherited. It is not the case of the plaintiffs that under Ex.B1-Will, all the properties owned by late T.Kanagaraj was sought to be bequeathed under the Will totally disinheriting the plaintiffs. Only the suit properties were made the subject matter of the bequest made under the Will. It is admitted by the plaintiffs that there was a bone mill,a card board factory and a paper mill, which have not been included in the Will. Therefore, it is quite obvious that running businesses, namely the bone mill, card board factory and paper mill, were spared by Kanagaraj to be inherited by his non-testamentary legal heirs and only the suit properties were bequeathed to the legatees under the Will. The suit properties are none other than Annai Velankanni Matha Kebi constructed and maintained by Kanagaraj in front of the paper mill, a vacant land annexed to the same in which a canteen is being run by one Saraswathi and a Kalyana Mandapam known as "Holy Mother Palace", a Maruthi car, An Ambassador car and a lorry. All the suit properties have been bequeathed under the Will to the Trust called "Annai Velankanni Matha Kebi Charitable Trust". The Trust to which the said properties were bequeathed has been directed to spend a sum of Rs.1,00,000/- per annum for conducting the annual festival of Annai Velankanni Matha Kebi. A sum of Rs.15,000/- was directed to be spent for feeding the devotees thrice during the annual festival of St. Joseph Church (g[dpj R{irag;gh; Myak;), Karungulam and a sum of Rs.1,000/- on a day in every week was directed to be spent for providing food to the persons attending Annai Velankanni Matha Kebi. In addition to the above said charities, it has been directed that the third defendant Parvathy should be paid a sum of Rs.5,000/- per month from the income of the Trust properties, till her life time and after her life time, the said amount should be paid to the fourth defendant Arockia Mary and her legal heirs. A consideration of the contents of Ex.B1-Will show that late Kanagaraj aimed at providing source for certain charities and at the same time wanted to ensure that a recurring payment is made from the income of the Trust properties to the third defendant till her life time and thereafter to the fourth defendant and her legal heirs. As rightly pointed out by the learned counsel for the defendants, the same could have been done as the testator was conscious of the fact that the third defendant cannot get any share from the estate of late Kanagaraj as a non-testamentary legal heir and any claim that may be made by the fourth defendant as a non-testamentary legal heir may also be resisted. Relying on Exs.A139 and A140, it has been contended on behalf of the plaintiffs that the second defendant applied for encumbrance certificate and made the un-encumbered properties included in the Will leaving the encumbered properties. It is further contended that the encumbrance certificates were obtained on the instructions of Kanagaraj. The mere fact that such an encumbrance certificate was obtained and there is no encumbrance in respect of the properties included in the Ex.B1-Will, will not be enough to make the Will unnatural and on the other hand, the choice of giving un-encumbered properties to the Trust made by the testator on his wisdom cannot be doubted. In fact, as indicated above, it has not been proved that all the remaining properties encumbered and the liabilities are huge enough to eat away the entire assets left untouched by Ex.B1-Will.
26. As pointed out supra, there are three running factories which were not made the subject matter of the Will. P.W.1, namely the 2nd plaintiff has categorically admitted that card board factory in Pettai is still being run, whereas the bone factory has been closed as there is outstanding bank loan. It is also an admission made by P.W.1 that one Shanmugasundara Raja and Anusuya, claiming enjoyment of the card board factory on lease, had filed a suit in O.S.No.151/2005 against the plaintiffs and defendants 3 and 4; that the plaintiffs in the present suit filed a petition for transfer of the said case for joint trial along with the present case and that the same was dismissed. It is the contention of the plaintiffs that only unencumbered properties were included in the Will leaving the encumbered properties. But there is no evidence to show the value of the above said factories, the outstanding loan and the net value after deducting the liability. There is also absence of evidence as to how much is the income derived from those properties. Therefore, we have to accept the contention of the defendants that more valuable properties have been left out to be inherited by the legal heirs of Kanagaraj by way of non- testamentary succession and only the suit properties were bequeathed in favour of Annai Velankanni Matha Kebi Charitable Trust for certain charitable purposes and also with an intention to provide some kind of financial support for the third defendant and the fourth defendant. Under such circumstances, this court is not in a position to accept the contention of the plaintiffs that the legally wedded wife and legitimate daughter of Kanagaraj were sought to be totally disinherited and that hence the Will is unnatural. Such a contention that they were sought to be totally disinherited, has not been substantiated. On the other hand, it has been proved by the defendants and also admitted by the plaintiffs that there are other properties which are more valuable, yielding sufficient income. In Ramabhai Padmakar Patil (Dead) through L.Rs and others v. Rukminibai Vishnu Vekhnade and others reported in (2003) 8 SCC 537, the Hon'ble Supreme Court has made the following observation:
"8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances, especially in a case where the bequest has been made in favour of an offsping...."
Referring to the same, the Hon'ble Supreme Court once again in Savithri & Ors. V.Karthyayani Amma & Ors. reported in AIR 2008 Supreme Court 300 has made the following observation:
19.Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances.
For the said purpose, as notice hereinbefore, the back ground facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting his expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant."
The facts of the case (Savithri & Ors. V.Karthyayani Amma & Ors. [AIR 2008 Supreme Court 300] ) are almost similar to that of the case on hand. The above said observation made by the Hon'ble Supreme Court squarely applies to the case on hand.
27. It is the contention of the plaintiffs that Kanagaraj was suffering from Diabetics which resulted in renal failure and he was taking dialysis therapy for about two years prior to his death. It is the further contention of the plaintiffs that he had also lost his eyesight due to the above said complications and was not possessed of sound disposing state of mind to execute a valid Will on 05.11.2004. In this regard, it is admitted by the defendants that Kanagaraj was a diabetic patient and due to the same his kidneys were affected and he was put on dialysis for about two years prior to his death. But, it is their categorical contention that otherwise he was all right and he was having sound disposing state of mind during the said period and especially on 05.11.2004. It is also their clear contention that the plaint averment that Kanagaraj's eye sight was greatly impaired, was not correct and was invented for the purpose of the case. Of course, it is true that the plaintiffs have examined Dr.Ramasubramaniam as P.W.2 to show that Kanagaraj was put on dialysis for about 106 times between October 2003-December 2004 and he had his last dialysis on 24.12.2004. It is also the evidence of P.W.2 that again Kanagaraj was admitted in Sheeba Hospital on 25.12.2004 due to difficulty in breathing and died in the said hospital on 26.12.2004. There is no dispute regarding the said fact. Though an attempt was made to show that late Kanagaraj would not have got sound disposing state of mind during the said period and especially on 05.11.2004, the said attempt to prove the same through the testimony of P.W.2, has resulted in failure. He has stated that during the course of dialysis, Kanagaraj was treated as out patient. It is also his testimony that the brain of the patients put on dialysis may or may not get affected. Nowhere in the evidence of P.W.2 he has stated that at any point of time Kanagaraj was found to be not in sound disposing state of mind or that his brain had been affected or that he had lost his memory or consciousness at any point of time. Per contra, there are clear admissions made by P.W.1 to the effect that till the date of death, her father Kanagaraj was enjoying his properties and he himself was operating his bank account. Such a clear admission made by P.W.1 that her father Kanagaraj was enjoying his properties and was operating his bank account till his death, will go to show that he was in a sound disposing state of mind on the date of Ex.B1-Will.
28. It is the further contention of the plaintiffs that the fact that Ex.B2-Trust Deed came to be executed on 04.11.2004, a day prior to the date of Ex.B1-Will, will show that both the documents were created with the help of the second defendant. It is pointed out on behalf of the plaintiffs that the Kalyana Mandapam address itself is given as the address of the Registered Office of the Trust in Ex.B2-Trust Deed whereas the said property had been bequeathed only subsequently, namely on 05.11.2004. It is true that the Registered Office of "Annai Velankanni Matha Kebi Chartiable Trust" is given as "at Holy Mother Palace, No.6, Old Police Hospital Street, Palayankottai, Tirunelveli". The mere fact that the Registered office of the Trust was shown to be a building, which did not belong to the Trust at that point of time, shall not be the sole ground on which genuineness of either the Trust Deed (Ex.B2) or Ex.B1-Will can be doubted. The Trust itself was created for the maintenance "Kebi" established and run by Kanagaraj and certain charities attached to the same. Clear evidence has been adduced through D.Ws.1 and 3 that the Trust itself was created on the advice of Kanagaraj, who was desirous of bequeathing properties in favour of the Trust. There won't be any wonder in a person who made up his mind allowing one of his properties which he intends to bequeath to the Trust, to be used as the Registered office of the Trust. Therefore, the said fact that the Registered Office of the Trust is shown to be the Holy Mother Palace in Ex.B2 alone shall not be enough to doubt the genuineness of either Ex.B2-Trust Deed or Ex.B1-Will.
29. It is also pertinent to note that there are ample evidence adduced on the side of the defendants that during his last days Kanagaraj was left uncared by his wife and daughter, namely the plaintiffs and he spent his last days in the Holy Mother Palace wherein he also had the dialysis treatment. The said evidence stands corroborated by the admission made by P.W.1 that her father was in the Kalyana Mandapam during the period he was put on dialysis and that she and her mother were attending on him in the Kalyana Mandapam and not in their residence. There are also other admissions made by P.W.1. She would state that she does not know who is paying the electricity charges for the "Kebi". It is also an admission made by P.W.1 that a complaint was lodged in Crime No.41/2005 on the file of Suthamalli Police Station on behalf of the Trust against the husband of the second plaintiff to the effect that he had taken away the Maruthi car and that after the registration of the said case, the Maruthi car was retrieved from her husband and handed over to the Trust. All the documents produced by the plaintiffs as Exs.A16 to A132 are documents pertaining to the treatment of late Kanagaraj. The defendants have given a clear explanation as to how the plaintiffs happened to be in possession of those documents. It is their case that after the death of Kanagaraj, the plaintiffs came to the Kalyana Mandapam and took away those documents. Similar is the case of the documents marked as Exs.A14 to A16. Of course it is true that D.W.3 admits that he has signed in Exs.A133 and A134 invoices under the seal reading "Manager". But he has categorically denied that he was the Manager. In Exs.A135 and 136 - invoices, for the owner of the bone mill he has signed. But here also he has made it clear that he signed "for the Proprietor" as an employee of Kanagarj . From the same it cannot be assumed that the case of the plaintiffs that D.W.3, the second defendant was having the control of the entire affairs of Kanagaraj and he was in possession of all the documents relating to the suit properties, which have been produced on the side of the defendants. The contention of the plaintiffs that the second defendant (DW3) was also having in his possession the cheque books of Kanagaraj and with the help of the same he could have created the suit will - Ex.B1, cannot be countenanced.
30. For all the reasons stated above, this court comes to the conclusion that the suspicious circumstances projected by the plaintiffs as surrounding the suit Will (Ex.B1) has been clearly explained and the cloud has been cleared and the suspicion has been dispelled by the defendants; that Ex.B1-Will has been proved to be genuine and was executed by Kanagaraj while he was in sound disposing state of mind; that the alleged total dis-inheritance caused by the Will has not been substantiated by the plaintiffs and that therefore the plaintiffs have not substantiated their case by reliable evidence. The learned trial judge seems to have been carried away by the fact that no provision has been made in the Will in favour of the plaintiffs, who are legally wedded wife and legitimate daughter of Kanagaraj and that is the reason why the learned trial court has misguided itself in a wrong approach and arrived at an erroneous conclusion that the Will (Ex.B1) is not genuine. The said finding of the trial court and the consequent granting of the reliefs in favour of the plaintiffs are liable to be reversed and the suit of the plaintiffs is liable to be dismissed.
31. In the result, the appeal suit is allowed. The decree of the trial court dated 23.12.2009 made in O.S.No.1 of 2005 on the file of the learned 1st Additional District Judge, Tirunelveli is set aside. The original suit No.1 of 2005 shall stand dismissed. However, there shall be no order as to costs.
asr