Madras High Court
K.Rajeswari vs Kungumayee (Deceased) on 30 April, 2024
A.S. (MD) No.63 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 01.03.2024
Pronounced on 30.04.2024
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
A.S. (MD) No. 63 of 2011
and M.P.(MD) No.1 of 2012
1. K.Rajeswari
2. K.Saravanan
3. K.Kungumaraj .. Appellants / Defendants
Vs.
Kungumayee (Deceased) ... Respondent / Plaintiff
2. G.Parameswari
3. K.Malayalan
4. K.Kaliswaran .. Respondents 2 to 4
(R2 to R4 are brought on record as L.R's. of the deceased sole respondent
vide order of the Court dated 13.06.2023 made in C.M.P.(MD) No.
6762/2023 in A.S.(MD) No.63 of 2011)
Appeal Suit is filed under Section 96 C.P.C., to set aside the
judgment and decree dated 28.04.2011 made in O.S.No.144 of 2008 on the
file of the Additional District Judge, Fast Track Judge, Dindigul and allow
the above first appeal.
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For Appellants : Mr.H.Lakshmi Shankar
for Mr.V.Vanangamudi
For Respondents : Mr.S.Anand Chandrasekar
for M/s.Sarvabhauman Asociates
for R2 to R4
JUDGMENT
This appeal has been preferred as against the judgment and decree passed in O.S.No.144/2008 on the file of the learned Additional District Judge, Fast Track Court, Dindigul wherein the respondent herein had filed a suit as against the appellants for the relief of declaration and recovery of possession of 1st Item of the suit schedule properties and sought for the relief of partition of her 1/4th share over the 2nd to 4th Items of the suit schedule properties and also for mesne profits.
2. The trial Court has decreed the suit in its entirety. Aggrieved by the said decree and judgment, the present appeal has been filed by the defendants / appellants.
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3. The brief averments of the plaint are as follows:
Originally the land in Survey No.120/1, Chitharevu Village, Palani, belonged to the parents of the plaintiff through sale deed. In the year 1988, the father and mother of the plaintiffs partitioned their properties and 1st Item of the suit schedule properties was allotted to the mother of the plaintiff by name Kaliammal. Thereafter, the mother of the plaintiff had been in possession and enjoyment of the said property by obtaining separate patta and paying kist to the properties. While so, the mother of the plaintiff executed a Will dated 21.11.1996 in favour of the plaintiff and the said Will is the last Will. The mother of the plaintiff died on 07.12.2001. After the demise of Kaliammal, the plaintiff is enjoying the property through the Will dated 21.11.1996 as her exclusive properties.
3.1 The 2nd Item of the suit schedule properties belonged to the father of the plaintiff by name Vadivel Chettiar through partition in the year 1988. The said Vadivel Chettiar died intestate on 02.03.1982 leaving behind the plaintiff and husband of the first defendant and mother of the plaintiff as his only legal heirs. One Krishnamoorthi who was born to the parents of the plaintiff, predeceased his father Vadivel Chettiar in the year 3/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 1988. The said Krishnamoorthi is the husband and father of the defendants respectively. Therefore, the plaintiff is entitled to half share and the husband of the first defendant is entitled to half share.
3.2 After the demise of the said Krishnamoorthi, the defendants 2 and 3 are in possession and enjoyment of the 2nd and 3rd Items of the suit schedule property and also they shared the income with the plaintiff.
However, for the past two years, they refused to give share to the plaintiff.
3.3 The 3rd item of the suit schedule property originally belonged to one Ponnan Chettiyar who is the grandfather of the plaintiff. Since the said property is an ancestral property, the father of the plaintiff is entitled to half share and his son, the brother of the plaintiff namely Krishnamoorthi, is entitled to half share of the property. The share of Krishnamoorthi goes to the defendants and the share of the father of the plaintiff has to be divided into four shares.
3.4 The 4th Item of the suit schedule properties was purchased by the father of the plaintiff. All the 2nd to 4th Items of the suit schedule properties 4/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 are under the joint possession and enjoyment of the plaintiff and the defendants. Therefore the plaintiff has filed the suit for recovery of possession in respect of 1st Item of the property and for partition over the other properties. The defendants denied the share of the plaintiff on the ground that the plaintiff executed a release deed. In fact, the plaintiff did not execute any release deed and she has only put her signature in blank papers and thereby, the defendants created the forged release deed. The plaintiff never relinquished her right over the suit properties. The said release deed is a forged one and the same is not binding upon the plaintiff. Therefore, the plaintiff filed the suit.
4. The brief averments of the written statement filed by the second defendant are as follows:
The plaintiff and the husband of the first defendant and father of defendants 2 and 3 are the daughter and sons of one Vadivel Chettiar and Kaliammal. It is false to state that the 1st Item of the suit schedule property was jointly enjoyed by the father and mother of the plaintiff. On the other hand the properties are self acquired properties of Vadivel Chettiar. The mother of the plaintiff namely Kaliammal had no independent income and 5/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 she never possessed any properties. It is denied that the plaintiff’s mother Kaliammal had executed a Will dated 21.11.1996 in respect of the 1st Item of the suit schedule properties. The 1st and 2nd Items of the suit schedule properties are indivisible and the plaintiff was never in joint possession over the properties.
4.1 The 3rd and 4th Items of the suit schedule properties were already bequeathed in favour of 2nd and 3rd defendants through Will executed by Vadivel Chettiar.. After the demise of the Vadivel Chettiar, the 2nd and 3rd defendant have alienated the properties to third parties. Therefore the 3rd and 4th Items of the suit schedule properties are separate properties of 2nd and 3rd defendants. The plaintiff has no right over the properties of 2nd and 3rd Items of the suit schedule properties.
4.2 After the demise of Vadivel Chettiar, the plaintiff approached the defendants and demanded some properties. Thereafter, Panchayat was convened and then the plaintiff executed the release deed dated 24.07.1997. Since she relinquished her right over the 1st and 2nd Items of the suit schedule properties, she cannot claim any right after the 6/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 relinquishment through release deed dated 24.07.1997. The 2nd and 3rd defendants have already alienated the properties to the first defendant and the 4th Item of the suit schedule properties was partitioned between the 2nd and 3rd defendants and hence the plaintiff was never been in joint possession of the properties and she has no right over the properties.
Therefore the suit is liable to be dismissed.
5. The second defendant has filed an additional written statement by stating that 1st and 2nd Items of the suit schedule properties originally belonged to the Neikarapatti Jamin and the same were acquired by the Government and thereafter the properties were enjoyed by the plaintiff’s father along with his brothers Arumugam and Karuppasamy. After the demise of Vadivel Chettiar, his son Krishnamoorthi enjoyed the properties along with his father’s brothers. Thereafter along with the 1st and 2nd Items of the suit schedule properties, 33 acres of land were handed over to the family of Krishnamoorthi which consists for 24 persons, by the Government. Therefore, the plaintiff has no right over the 1st and 2nd Items of the suit schedule properties. Since all the shareholders of 1st and 2nd Items of the suit schedule properties have not been impleaded as parties to 7/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 the suit, the suit is bad for non-joinder of necessary parties. Since the 1st and 2nd Items of the suit schedule properties are not joint family properties, the plaintiff is not entitled to any share over the properties.
6. The plaintiff has filed a reply statement by stating that the 1st Item of the suit schedule properties was purchased by the plaintiff’s father and mother. The plaintiff's mother contributed the amount by selling her jewels and thereafter they partitioned the property in the year 1988. The averments made in the written statement that Vadivel Chettiar, on 12.10.1978, executed a Will in favour of the 2nd and 3rd defendants in respect of 3rd and 4th Items of the suit schedule properties, are all denied. The release deed executed on 24.07.1997 is denied as false. No Panchayat was convened as stated by the defendants. The release deed does not contain any description of property. The signature of the plaintiff was obtained for transfer of patta and thereby, she executed the document. The plaintiff never executed the document as release deed. The documents executed between the defendants are not binding on the plaintiff. Therefore the plaintiff is entitled for the relief of partition of her 1/4 th share over the 2nd to 4th Item of the suit schedule properties and also for mesne profits. 8/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011
7. Based on the above said pleadings, the trial Court has framed the following issues:
i) Whether the plaintiff is entitled to the relief of declaration and recovery of possession in respect of the 1st Item of the suit schedule properties?
ii) Whether the plaintiff is entitled to partition and separate possession of her ¼ share over the 2nd to 4th item of the suit schedule properties ?
iii) Whether the plaintiff is entitled to mesne profits from 2nd and 3rd defendants ?
iv) Whether the mother of the plaintiff by name Kaliammal executed the Will dated 21.11.1996 in respect of the 1st Item of the suit schedule property ?
v) Whether Vadivel Chettiar executed the Will dated 12.10.1978 in respect of 3rd and 4th Items of the properties in favour of 2nd and 3rd defendants ?
vi) Whether the plaintiff had executed the released deed dated 24.07.1997 ?
vii) Whether the suit is bad for non-joinder of necessary parties ? 9/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011
viii) To what relief the plaintiff is entitled to ?
8. Before the trial Court, on the side of plaintiff, she examined P.W.1 & P.W.2 and marked Exs.A1 to A7. On the side of the defendants, they examined D.W.1 and D.W.2 and marked Exs.B1 to B11.
9. After considering the evidence adduced on both sides, the trial Court decreed the suit. As against the decree and judgment passed by the trial Court, the unsuccessful defendants have preferred this appeal on the following grounds:
“ 1. The judgment and decree passed by the Court below are contrary to law and facts and probabilities of the case.
2. The learned Trial Judge ought to have seen that Ex. A 1 dated 21.11.88 is only a Xerox copy of the Will allegedly executed by Kaliammal, and is not admissible in evidence.
3. The learned Trial Judge ought to have seen that the plaintiff had no claim whatsoever over the entire extent of item No. 1 of the suit schedule.
4. The learned Trial Judge ought to have seen that in view of 10/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 Ex. A 7 the deed of release executed by the respondent herein, the present suit is not maintainable.
5. The learned Trial Judge ought to have seen that after receiving consideration, the respondent had specifically relinquished all her right in the family properties and that therefore she had no further claim thereon.
6. The learned Trial Judge having received Ex. B 5 Will dated 12.10.78 executed by late Vadivel in favour of the defendants 1 and 2 ought to have held that the entire family estate had been bequeathed in favour of defendants 1 and 2 and that therefore the plaintiff was not entitled to any share to any of the suit items.
7. The learned Trial Judge ought to have seen that Ex. B 5 Will dated 12.10.78 came into force on the demise of the Testator in the year 1982 and that therefore the suit for declaration and partition and separate possession filed in the year 2008 is clearly liable to be dismissed.
8. The learned Trial Judge ought to have seen that the revenue records stand in the name of the defendants and that therefore assuming without admitting the plaintiff has semblance of title, the same got extinguished.
9. The learned Trial Judge erred in holding that Ex A 7 the 11/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 release deed was not proved as per law.
10. The learned Trial Judge ought to have seen that the evidence materials on record clearly show that Ex B 7 has been proved to the hilt.
13. The learned Trial Judge ought to have seen that even though Ex B 5 has not been probated it is still admissible in evidence for collateral purpose.
14. The learned Trial Judge ought to have seen that when the Will come into force and that the property will vest with the Legatee, the moment the testator dies and that merely because Will has not been probated it is postponed to vest in the property.
15. The learned Trial Judge ought to have seen that the defendants had been dealing with the properties as absolute owners thereof.”
10. Mr.H.Lakshmi Sankar, the learned counsel for the appellants, would contend that the first respondent herein has filed a suit for the relief of declaration and recovery of possession in respect of 1st Item of the suit schedule properties and for partition in respect of 2nd to 4th Items of the suit schedule properties. According to the respondent / plaintiff, the 1st 12/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 Item of the suit schedule properties belonged to her parents through sale deed and they purchased the property jointly and thereafter they partitioned the properties in the year 1988. As per the partition, the 1st item of the suit schedule properties was allotted to the mother of the plaintiffs and she was in possession and enjoyment of the property. While so, the mother of the plaintiff namely Kaliammal had executed a Will dated 21.11.1996. The mother of the plaintiff died on 07.12.2001. In fact, the 1st and 2nd Items of the suit schedule properties are indivisible and they never belonged to the mother of the plaintiff. The 1st and 2nd Items of the suit schedule properties originally belonged to Neikarappatti Jamin and the Government has acquired the properties under the Land Ceiling Act and thereafter the grandfather of the 2nd and 3rd defendants namely Vadivel Chettiar and his two brothers enjoyed the properties and thereafter the Government has assigned patta in favour of Vadivel Chettiar and his family and totally 24 persons obtained patta in respect of those properties. Therefore, the mother of the plaintiff has no right, title and interest over the said property. The other 24 persons in whose name the patta was granted were not impleaded as parties to the suit.
13/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 10.1 The trial Court has not considered the above said aspects and moreover the said Will has not been proved by the plaintiff. In fact the mother of the plaintiff subsequently cancelled the Will on 02.07.1997 through Ex.B17. On the same day of executing the Will dated 21.11.1996, Kaliammal had also executed a Power of Attorney deed in respect of the properties covered under the Will and the same was also cancelled through cancellation deed dated 24.07.1997. Thereafter, the said Kaliammal had executed a settlement deed in favour of 2nd and 3rd defendants through Ex.B18. Therefore, the plaintiff cannot claim any property through the said Will. In fact, Vadivel Chettiar who is the grandfather of defendants 2 and 3 had executed a Will in favour of 2nd and 3rd defendants in respect of 3rd and 4th Items of the suit schedule properties in the year 1978 and thereafter he died in the year 1982. Thereafter the 2nd and 3rd defendants have sold some properties but the purchasers of the above said properties have not been impleaded as parties in the suit.
10.2. The so called partition deed mentioned in the Will (Ex.A1) in the year 1988 and the sale deed of the year 1965 have not been produced 14/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 by the plaintiff. Moreover the plaintiff has executed a released deed dated 24.07.1997 and after the execution of released deed, the 1st, 2nd and 3rd defendants have entered into a partition. Therefore, the plaintiff relinquished her right over the properties in respect of her share.
10.3 In respect of 3rd and 4th Items of the suit schedule properties, already Vadivel Chettiar had executed a Will in favour of 2nd and 3rd defendants and the same was also proved through probation. In the probation proceedings one of the attesting witness of the Will was also examined as P.W.2. and he had also once again examined as one of the attesting witnesses of the said Will as D.W.3 in this case. Therefore, the defendants have proved the Will dated 12.10.1978.
10.4 The plaintiff has not challenged the said release dated 24.07.1997. Already this Court has remanded the case for examination of one Kaleeswaran as plaintiff side witnesses and thereafter only the Ex.A8 and Exs.B14 to B.20 were marked and P.W.2 was recalled and examined, D.W.2 and D.W.3 were examined. Once again the plaintiff’s daughter alone was examined by recalling her as P.W.2. She is also one of the 15/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 attesting witness in the Power of Attorney deed dated 21.11.1996. In the release deed (Ex.B7) there is a specific endorsement about the receipt of amount by the plaintiff. Therefore, the plaintiff is not entitled to any share over the properties. But the trial Court, without considering the above said aspects, decreed the suit by holding that the plaintiff has proved the Will executed by her mother and the defendants have failed to prove that the properties belongs to them and failed to prove the execution of release deed. Therefore, the decree and judgment passed by the trial Court are liable to be set aside.
11. In support of his above contentions, the learned counsel for the appellants relied on the following judgments :
i) Munnalal Vs. MST.Kashibai reported in AIR 1947 PC 15;
ii) Mahant Sital Das Vs. Sant Ram and others reported in AIR 1954 SC 606;
iii) Kalidindi Venkata Subbaraju & others Vs. Chintalapati Subbaraju & others reported in AIR 1968 SC 947;
iv) Subhash Nayyar & others Vs. Registrar, University of Delhi and others reported in 2013 (134) DRJ 457 (DB);
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v) State of Bihar Vs. Kalika Kuer alias Kalika Singh and others reported in 2003 (5) SCC 448;
vi) Janaki Devi Vs. R.Vasanthi reported in 2005(1) CTC 11;
vii) Brahmadat Tewari Vs. Chaudan Bibi reported in AIR 1916 Cal 374;
viii) Swanalatha & ors. Vs. Kalavathy & ors reported in 2022(3) MLJ 569;
ix) Prem Singh and ors. Vs. Biral and others reported in AIR 2006 SC 3608;
x) Rattan Singh and others Vs. Nirmal Gill and others reported in 2021 (15) SCC 300;
xi) R.Ve. Venkatachala Gounder Vs. Arulmigu Visweswaraswami & V.P.Temple and another reported in 2003(8) SCC 752;
xii) Appaiya Vs. Andimuthu alias Thangapandi and others reported in 2023 SCC Online 1183;
xiii) Union of India and others Vs. Vasavi Cooperative Housing Society Limited and others reported in 2014 (2) SCC 269;
xiv) Govindbhai Chhotabhai Patel and others Vs. Patel Ramanbhai Mathurbhai reported in 2020 (16) SCC 255; 17/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011
xv) Mohamed Abdullah and two others Vs. K.A.M.Anwar Ali and 4 others reported in 1997 (3) LW 824.
12. Mr.S.Anand Chandrasekar, the learned counsel for the respondents, would contend that originally the 1st Item of suit schedule properties belonged to the mother and father of the plaintiff and they purchased the property in the year 1963 and thereafter, they partitioned their properties in the year 1988. In the said partition the 1st Item of the suit schedule property was allotted to the share of the mother of the plaintiff and she has been in possession and enjoyment of the said property and thereafter she had executed a Will on 21.11.1996 in respect of the 1 st Item of the suit schedule property. The said Will is the last Will of plaintiff's mother Kaliammal. The said Kaliammal died on 07.12.2001. After the demise of Kaliammal, the Will came into force and thereafter the plaintiff is entitled to the said property and she has been in possession and enjoyment of the 1st Item of the suit schedule property.
12.1 The 2nd Item of the suit schedule property belonged to the father of the plaintiff namely Vadivel Chettiar through a partition deed and he 18/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 died on 02.03.1982. After his demise, the properties have to be partitioned. The plaintiff and the brother of the plaintiff namely Krishnamoorthi are entitled to the properties as legal heirs of Vadivel Chettiyar. After the demise of the mother of the plaintiff, the plaintiff and the husband of the first defendant who is also the father of 2nd and 3rd defendants are each entitled to half share of the 2nd Item of the suit schedule properties. The said Krishnamoorthi, brother of the plaintiff, died in the year 1988. After the demise of Krishnamoorthy, the 2nd and 3rd defendants are in possession and enjoyment of the said property and they shared the income from the 3rd and 4th items of the suit scheduled properties.
12.2 The third item of the property belongs to one Ponnan Chettiyar who is the grandfather of the plaintiff. Along with the 3rd Item, the other Items of the suit schedule properties were also enjoyed by the plaintiff's paternal uncles namely Arumuga Chettiar and K.P.Karuppusamy Chettiar. The plaintiff's father had enjoyed the properties by digging well and maintaining the properties. Since the said 3rd item of the property is the ancestral property of her father, the plaintiff is entitled to ¼ share and the said Krishnamoorthi is entitled to ¾ share over the properties. The 4th Item 19/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 of the suit schedule property was purchased by the father of the plaintiff. Thus, the plaintiff is entitled to the suit properties and she hs share over the properties.
12.3 The defendants have taken a plea that the plaintiff had executed a release deed. But the said release deed has not been executed by the first respondent / plaintiff and for transfer of patta, the defendants obtained the signature from the plaintiff and she never executed a document as release deed. The defendants have also failed to prove the above said release deed in accordance with law. Further, the defendants have taken a plea that the mother of the plaintiffs cancelled the Will dated 21.11.1996 and executed the registered settlement deed in favour of the appellants on 24.07.1997. Thereafter the said Kaliammal also executed the Will dated 02.07.1997. Those documents are obtained by fraud and the mother of the plaintiff never executed any deed as alleged by the defendants.
12.4 The trial Court, after careful consideration, decreed the suit by holding that the defendants failed to prove the execution of the release 20/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 deed and the plaintiff has proved the Will dated 21.11.1996 which was executed by her mother in her favour. Thereafter the matter was remanded back to the trial Court and before the trial Court, P.W.2 was recalled and again examined and she deposed about the case and thereafter, Exs.B.14 to B20 were marked on the side of the defendants.
12.5 The appellants / defendants have not proved the alleged release deed executed by the plaintiff and the same has not been acted upon and further the alleged cancellation of Power of Attorney deed and the cancellation of Will executed in favour of plaintiff dated 21.11.1996 was cancelled by the said Kaliammal are false. The defendants have obtained those deeds on a single day and they have not examined any witnesses to prove the Will Ex.B5. One of the attesting witnesses was examined and he had also not supported the plaintiff's case. Therefore the defendants failed to prove the Will and the plaintiff is entitled for partition over the suit schedule properties. Therefore the decree and judgment passed by the trial Court is in order. Hence, the present appeal is liable to be dismissed.
12.6 The learned counsel appearing for the respondents relied on the following judgments in :
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i) R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P.Temple and another reported in (2003) 8 SCC 752;
ii) Janaki Narayan Bhoir Vs. Narayan Namdeo Kadam reported in 2003 (i) CTC 308;
iii) Ramesh Verma (dead) through legal representatives Vs. Lajesh Saxena (Dead) by legal representatives and another reported in (2017) 1 SCC 257;
iv) G.Lakshmi and other Vs. U.Saraswathi reported in 2017 (1) CTC 9;
v) Bharpur Singh and others Vs. Shamsher Singh reported in (2009) 3 SCC 687;
vi) M.B.Ramesh (dead) by lrs. Vs. K.M.Veeraje Urs (dead) by lrs.
and others reported in (2013) 7 SCC 490;
vii) Govindaraj Vs. Ramadoss reported in 2011 (3) CTC 433;
viii) Tamilkodi Vs. N.Kalaimani and other reported in 2015 (4) CTC 771.
For the sake of convenience and brevity, the parties hereinafter will be referred to as per their status / ranking in the trial Court. 22/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011
13. This Court heard both sides and perused the records. Upon hearing both sides and perusal of the records, the points for consideration raised in this appeal are as follows:
i) Whether the 1st Item of the suit schedule property was bequeathed by the mother of the plaintiff namely Kaliammal through the Will dated 21.11.1996?
ii) Whether the deceased Vadivel Chettiyar executed the Will dated 12.10.1978 in favour of defendants 2 and 3?
iii) Whether the plaintiff has executed the release deed dated 24.07.1997 through Ex.B7?
iv) Whether the mother of plaintiff namely Kaliammal executed the settlement deed in favour of defendants 1 and 2 through Ex.B18?
v) Whether the plaintiff is entitled to decree for declaration in respect of 1st Item of the suit schedule properties?
vi) Whether the plaintiff is entitled to recovery of possession in respect of 1st Item of the suit schedule properties ? 23/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011
vii) Whether the plaintiff is entitled to the relief of partition over the suit properties Item 2 to 4?
viii) Whether the decree and judgment passed by the trial Court are sustainable in law and on facts?
ix) Whether the appeal has to be allowed or not?
14. Point No.1:
Whether the 1st Item of the suit schedule property was bequeathed by the mother of the plaintiff namely Kaliammal through the Will dated 21.11.1996?
The plaintiff has filed a suit for declaration and recovery of possession in respect of 1st Item of the suit schedule properties by stating that the 1st Item was purchased by her parents and thereafter, they partitioned the properties in the year 1988. The 1st Item of the suit schedule properties was allotted to the mother of the plaintiff through partition and thereby, she was in possession and enjoyment of the same. While so, on 21.11.1996 the mother of the plaintiff had executed a registered Will in respect of Item 1 of the suit schedule properties in favour of the plaintiff.
The mother of the plaintiff namely Kaliammal died on 07.12.2001 and 24/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 after her demise, the plaintiff is entitled to the said property and she has been in enjoyment of the said property.
14.1 In order to prove the case of the plaintiff, she had examined P.W. 1 and P.W.2 and marked Exs.A1 to A7. The registered Will dated 21.11.1996 has been marked as Ex.A1. The original Will was not marked and only the xerox copy of the Will has been marked. There is no reason stated by the plaintiff for non-production of the original Will. Even after remand of the case by this Court, the plaintiff only produced the certificate copy of the Will as Ex.A8. Further, the plaintiff examined P.W.2 who is the attesting witness of the Will and she deposed about the execution and attestation of the said Will. P.W.2 is none other than the daughter of the plaintiff.
14.2 According to the plaintiff, the property belongs to her father and mother. But there is no whisper in the plaint as to how the father and mother of the plaintiff are entitled to the properties. Further, the plaintiff had stated that the property was allotted to her mother through partition in the year 1988. The said partition deed has not been produced before the 25/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 Court. Further, the plaintiff, in her examination stated that her father died on 02.03.1982. While so, how the partition was effected in the year 1988 has to be explained by the plaintiff.
14.3 According to the plaintiff, after the execution of Will, she has been in possession and enjoyment of the property. Per contra, she sought for the relief of recovery of possession in respect of Item I of the suit schedule property. Moreover, in her examination she stated as under:
“rpj;jnut[ fpuhkj;jpy; cs;s 1.2. mapl;lr;
brhj;Jf;fSf;F jdpj;jdpahf ehd;F khy;
brhy;ygltpy;iy vd;why; rhp jhd;/
rpj;jnut[ fpuhkj;jpYs;s jhth 1.2. mapl;lr;
brhj;Jf;fSf;F Mjpapy; ahh; bgaUf;F gl;lh ,Ue;jJ vd;W vdf;F bjhpahJ/ me;j brhj;Jf;fs;
bea;f;fhug;gl;o $kPDf;F ghj;jpag;gl;l brhj;Jf;fs;
vd;why; rhpjhd;/ bea;f;fhug;gl;o $kPdj
; hh; epy
cr;rtuk;g[ rl;lk; tUtij mwpe;jt[ld; vd;
jfg;gdhUf;Fk; mtuJ rnfhjuh;fSf;Fk; nrh;j;J
bkhj;jk; 6 egh;fSf;F fpiuak; bra;Jtpl;lhh;/ gpd;dh;
mth;fSf;F bkhj;jk; 3 ghfkhf gphptpid bra;J
bfhz;lhh;fs;/ rpj;jnut[ fpuhkjpYs;s 1.2. mapl;lr; brhj;Jf;fis murh';fk; vLj;Jf;bfhz;Lgpd;dpl;L. 24 egh;fSf;F gl;lh bfhLj;Js;sJ vd;why; me;j tptuk; vdf;F bjhpahJ/” 26/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 Therefore from the above evidence it is clear that the plaintiff has no knowledge about the acquisition of 1st and 2nd Items of the properties by her parents and the plaintiff failed to prove that the 1 st and 2nd Items of the suit properties were belonged to her mother Kaliammal.
14.4 Further P.W.2 is none other than the daughter of the plaintiff and she is one of the attesting witness of the Will. Though she stated about the execution and attestation of the Will, there are suspicious circumstances over the Will. Moreover the plaintiff failed to prove that her mother had the right over the said property to execute the Will. Further, P.W.2 in her cross-examination admitted as under:
“ capy; vGJtjw;fhf vd;Dila ghl;o jhd;
vd;id miHj;Jr;brd;whh;/ capy; vGJk; rkaj;jpy;
fhspak;khs; bgahpYs;s fpiuag;gj;jpuk; kw;Wk; gl;lh
Mfpatw;iwf; fhl;odhh;fs;/ capy; vGJk; rkaj;jpy; vd;
ghl;of;F bjhpe;jth;fs; Tl rhl;rp
ifbaGj;Jg;nghl;Ls;nsd;/ vd; ghl;of;Fj;
bjhpe;jth;fSk; rhl;rpf; ifbaGj;Jg;nghl;Ls;shh;fs;/ ” 27/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 Therefore from the evidence of P.W.2 it reveals that she do not know the another attesting witness. But at the time of execution of the Will, she along with others were also present. P.W.2 is not in a position to say the names of the person who were presented at the time of execution of the Will. Therefore the evidence of P.W.2 creates serious doubt.
14.5 Further, according to P.W.2, she saw the sale deed and patta in the name of Kaliammal. While so, those sale deeds and patta have not been produced by the plaintiffs. Even according to the plaintiff, her mother Kaliammal is entitled to the properties through partition made in the year 1988. P.W.2 also in her chief-examination stated that Kaliammal is entitled to property through partition in the year 1988. But in the cross-examination she stated that she had seen the sale deed which is in the name of Kaliammal. Therefore, her evidence is highly doubtful and the plaintiff failed to prove that Kaliammal had executed the Will and she had the right over the property to execute the Will.
14.6 The plaintiff has marked the Will as Ex.A1. On perusal of Ex.A1 it reveals that it is a xerox copy and no reasons stated by the plaintiff for 28/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 non-production of original Will, therefore the Ex.A1 does not comes within the purview of Section 65 of Evidence Act. The trial Court ought not to have relied on Ex.A1 since it is a xerox copy. After the remand, the plaintiff's side witness P.W.2 was recalled and examined. Ex.A8 copy of the Will Ex.A1 has been marked. On perusal of Ex.A8, it reveals that the deceased Kaliammal is entitled to the property through the sale deed of the year 1965 and thereafter there was a partition in the year 1988. But the said sale deed and partition deed have not been produced before the Court. The conduct of the parties creates serious doubt over the execution of the Will in favour of the plaintiff. Therefore, the non- production of the original Will without any reason and non-examination of the another independent attesting witness, creates suspicion and thereby the plaintiff failed to prove the execution of the Will in accordance with law. In this context the respondent / plaintiff relied on the judgment in R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P.Temple and another reported in (2003) 8 SCC 752. On a careful perusal of the said judgment it is clear that the certified copy of the partition deed can be admissible as secondary evidence. In the case on hand also the respondents / appellants marked Ex.A8 – certified copy of the Will, but not examined the other 29/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 attesting witnesses.
14.7 It is true that as per Section 68 of the Indian Evidence Act, at least one of the witnesses has to be examined for the purpose of proving the execution and attestation of the Will. In the present case, one of the attesting witnesses is the daughter of the beneficiary who stepped into the shoes of the beneficiary and attested in the Will and was examined as witness. Though the provisions of Section 68 of the Indian Evidence Act states that any one of the attesting witnesses has to be examined, the plaintiff failed to examine the independent witness who signed in the Will as another attesting witness. Since P.W.2 is daughter of the beneficiary of the Will, this also creates suspicious on the execution of the Will and therefore the plaintiff failed to prove the execution of Will dated 21.11.1996. This Court while pending appeal remanded the case for ascertaining the genuineness of Ex.A1 and Ex.B7 and the trial Court also examined the witnesses and marked Ex.A8 and B14 to B20. The Trial Court rendered its findings that the Will dated 21.11.1996 executed through Ex.A1 and Ex.A8 has not been proved and the same was subsequently cancelled through Ex.B17 and the said Will is not a last Will 30/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 of Kaliammal and also held that Ex.B5 Will was duly proved.
14.8 This Court also perused the documents filed by both the parties after remand and observed that on the side of defendants they produced Exs.B14 to B 20. On a careful perusal of Exs.B15 it revels that after the Will Ex.A1 and A8 on the same day the mother of plaintiff executed a Power of Attorney deed in favour of the plaintiff for the properties bequeathed through the Will, but the same has been suppressed by the plaintiff. Further on perusal of Ex.B16, it reveals that the said power deed Ex.B15 was cancelled on 24.07.1997. Therefore the reasonable doubt would arise in execution of Will as alleged by the plaintiff. Further according to the defendants the said Will was cancelled through Ex.B17 dated 02.07.1997 but no witnesses were examined to prove Ex.B17.
However the Will creates suspicious and the suspicious circumstances have not been removed by the plaintiff and thereby the Will has not been proved in accordance with law.
14.9. In this context, the learned counsel appearing for the respondents relied on the judgment of the Hon'ble Supreme Court in: 31/56
https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011
(i) Janaki Narayanan Bhoir Vs. Narayan Namdeo Kadam reported in 2003(1) CTC 308,
(ii) Ramesh Verma Vs. Lajesh Saxena reported in (2017) 1 SCC 257
(iii) G.Lakshmi and another Vs. U.Saraswathi reported in 2018(1) CTC 9 14.10. On a careful perusal of the said judgment, it is clear that where one attesting witness is examined and he fails to prove the attestation of the Will by the other witnesses, there will be deficiency in meeting the mandatory requirements of Section 68 of the Indian Evidence Act. In the case on hand one attesting witness alone examined. However the plaintiff failed to examine another attesting witnesses to prove the Will. Therefore as discussed above this Court is of the opinion that the plaintiff failed to prove the Will dated 21.11.1996 by Kaliammal and the same is her last Will. Thus Point No.1 is answered.
15. Point No.2:
Whether the deceased Vadivel Chettiyar executed the Will dated 12.10.1978 in favour of 2nd and 3rd defendants ?
According to the defendants, the said Vadivel Chettiar had executed a 32/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 Will in favour of 2nd and 3rd defendants in respect of 3rd and 4th Items of the suit schedule properties. The plaintiff denied the execution of the Will and the defendants have examined D.W.3 and due to his old age, he was not able to recollect his memory. Further another attesting witness was also died and thereby the defendants have not asked to examine the another attesting witness.
15.1 In this context, the learned counsel for the appellants would contend that the Will is 30 years old document and it has the presumption under Section 90 of the Indian Evidence Act. As per the law laid down by the Hon'ble Supreme Court, it is the presumption in respect of the Will which is more than 30 years old.
15.2 In support of his above contention, the learned counsel for the appellants relied on the judgment reported in:
(i) Munnalal Vs. MST.Kashibai reported in AIR 1947 PC 15;
ii) Mahant Sital Das Vs. Sant Ram and others reported in AIR 1954 SC 606;
iii) Kalidindi Venkata Subbaraju & others Vs. Chintalapati 33/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 Subbaraju & others reported in AIR 1968 SC 947;
iv) Subhash Nayyar & others Vs. Registrar, University of Delhi and others reported in 2013 (134) DRJ 457 (DB).
15.3 On a careful perusal of the above judgments, it is clear that if the original Will of 30 years old original document from proper custody is produced, statutory presumption under Section 90 of the Indian Evidence Act can be made out. Therefore, in the instant case also the original Will was more than 30 years old document produced from proper custody and thereby this Court can raise presumption. Per contra the learned counsel appearing for the respondents argued that the presumption under Section 90 of the Indian Evidence Act will not applicable to the Will. To support his contention, he relied on the judgments in :
i) Bharpur Singh and others Vs. Shamsher Singh reported in (2009) 3 SCC 687;
ii) M.B.Ramesh (dead) by lrs. Vs. K.M.Veeraje Urs (dead) by lrs.
and others reported in (2013) 7 SCC 490;
iii) Govindaraj Vs. Ramadoss reported in 2011 (3) CTC 433; 34/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 15.4 On a careful perusal of those judgment, it is clear that the presumption regarding documents of 30 years old is not applicable to Will. However, the case in Bharpur Singh and others Vs. Shamsher Singh reported in (2009) 3 SCC 687 was dealt by two judges bench and the case in Kalidindi Venkata Subbraraju & Others Vs. Chintalapati Subbaraju & others reported in AIR 1968 SC 947 was dealt by three judges bench and thereby the law laid down by the large bench of the Hon'ble Supreme Court has to be relied upon by this Court. In view of the said judgment and as discussed above, this Court is of the opinion that the presumption under Section 90 of the Indian Evidence Act is applicable to the Wills and in this case the appellants / defendants have produced the Ex.B5 original document of 30 years old and the same has a presumption under Section 90 of Evidence Act.
15.5 The trial Court, after remand by this Court, examined the attesting witness through Advocate Commissioner as D.W.3 and rendered findings that Ex.B5 Will has been proved. The attesting witnesses has not denied his signature in the Will and he only stated that he does not remember due to his old age. On perusal of the records it is observed that 35/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 the testator died in the year 1982 and thereafter the beneficiary of the Will had sold some portions of the properties bequeathed through the Will and the plaintiff has not taken any steps as against the persons to whom the properties were sold. This conduct of the plaintiff shows the knowledge of the Will. Further the Will was probated by this Court and thereafter the plaintiff filed a petition to set aside the said probate order and this Court observed that the probation is subject to the result of this case. The Ex.B20 is the order passed in probation O.P.No.246/2012. This Court in the previous proceedings in Probation O.P. examined the witnesses and then probated the Will. The attesting witnesses was examined in the said probate proceedings. The said affidavit has been marked as Ex.B19.
15.6 It is admitted fact that one of the attesting by name Thangavel is aged 93 years and it is difficult for him to remember the old things and he was examined as D.W.3 through Advocate Commissioner and he is unable to recall his memory. However his evidence tendered in the Probate O.P.No.246/2012 has been marked as Ex.B19 where he stated about the execution and attestation of the Will. The said evidence is admissible as per Section 32 of the Indian Evidence Act. Even D.W.3 has not denied his 36/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 signature attested in the Will and he stated that he does not remember due to his old age. Therefore, the defendants have proved Ex.B5 through sufficient evidence in accordance with law.
15.7 Further, the learned counsel for the appellants would also contend that in order to prove the Will Ex.B5, Mr.Thangavel Chettiar who was one of the attesting witness was examined through Advocate commissioner and due to his old age he was unable to give evidence about the execution and attestation of the Will. Another attesting witness died and Ex.B14 – death certificate was also produced. As per Section 71 of the Evidence Act, the execution of the Will can be proved by other witnesses. However, as per the provisions of Section 57 and 60 of the Registration Act, the contents of a registered document is also admissible in evidence. Therefore, the attestation of the Will is also proved.
15.8 To support his above contention the learned counsel for the appellants relied on the following judgments:
i) Janaki Devi Vs. R.Vasanthi reported in 2005(1) CTC 11;
ii) Brahmadat Tewari Vs. Chaudan Bibi reported in AIR 1916 Cal 37/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 374 On a careful perusal of the above judgments it is clear that the registration, by itself, in all cases, is not a proof of execution, but if no other evidence is available, the certificate of registration is a prima facie evidence of its execution and the certification of registration officer under Section 60 of the Registration Act is relevant for proving its execution.
Further, it is clear that when the evidence of the attesting witness is vague, doubtful or even conflicting upon some material point, the Court may taken into consideration of the circumstances of the case and judge from them collectively whether the requirements of the statute were complied with. In other words, the Court may on consideration of other evidence or of the whole circumstances of the case come to conclusion that their recollection is at fault, that their evidence is of a suspicious character or that they are wilfully misleading the Court and accordingly disregard their testimony and pronoun in favour of the Will and every presumption will be made in favour of due execution and attestation in the case of a Will regular on the face of it and apparently duly executed. In the case on hand also one of the attesting witness was examined as D.W.3 and due to his old 38/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 age he was unable to depose about the Will and another witness also died. Further the learned counsel appearing for the appellant relied on the judgment in Swarnalatha & Ors. Vs. Kalavathy & ors. Reported in 2022 3 MLJ 569 . On a careful perusal of the said judgment it is clear that in cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. In the case on hand also the mental capacity and the signature of the testator have not been disputed.
15.9 The Will executed in the year 1978 was not challenged and only during this case proceedings the plaintiff denied the execution of the Will and she had not filed the suit for partition immediately after the demise of his father. However, she waited for a considerable time and now had filed the suit for partition. This shows that the plaintiff has the knowledge about the Will Ex.B5 and thereby she has not claimed any partition over the properties for a long period. Further the defendants have produced Ex.B6 sale deed dated 18.04.1984 executed by 2nd and 3rd defendants in favour of Kuppusamy in respect of the properties referred in the Will. The plaintiff has not sought for any relief in respect of those properties. In the said sale 39/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 deed the Will executed by Vadivel Chettiar has been referred and therefore, it is clear that the Will came into force and acted upon. The plaintiff has not taken steps to challenge the sale deed executed by 2 nd and 3rd defendants to Kuppusamy Chettiar in respect of some of the properties referred in the Will. Therefore, the conduct of the plaintiff would show that she know about the Will and has not taken any steps. Therefore, the defendants have proved the Will dated 12.10.1978 in favour of the 2nd and 3rd defendants in accordance with law. Thus the point is answered.
16. Point No.3 : Whether the plaintiff has executed the release deed dated 24.07.1997 through Ex.B7 ?
According to the defendants, the plaintiff executed the release deed dated 24.07.1997. The said fact has been denied by the plaintiff and she has not mentioned anything about the said release deed in the plaint. Per contra, after filing of the written statement by the defendants, the plaintiff had filed her reply statement. In the reply statement, the plaintiff denied that in the release deed dated 24.07.1997 there was no mention about the description of the properties and the defendants, in order to get loan from the bank and also for transfer of patta, asked the plaintiff to execute the 40/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 deed. For that purpose only the plaintiff had executed the release deed and not for the release of properties. Therefore, the said release deed will not bind upon the plaintiff.
16.3 A copy of the said deed was marked as Ex.B7. On a careful perusal of Ex.B7, it reveals that the plaintiff had executed the release deed in favour of his mother Kaliammal and in favour of 2 nd and 3rd defendants. The plaintiff has not denied the signature found in Ex.B7 and the execution, but her contention is that she had not executed the deed as release deed but per contra she had executed the deed for transfer of patta and to get loan from the bank.
16.4 In this context the learned counsel for the appellants / defendants brought to the knowledge of the Court that the plaintiff was residing at Chennai and she came to Palani for the purpose of executing the said deed. Therefore, the plaintiff very well know about the execution of the release deed and moreover she received a sum of Rs.15,000/- and the same was also endorsed in the release deed itself. Therefore, as per Section 58 (1)(c) of Registration Act read with Rule 91 of the Registration Rules, there is a 41/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 presumption. Further, it is a well settled position of law that the registered document should be presumed as genuine and validly executed and the burden of proof is only on the party disputing the same to rebut the presumption.
16.5 In this context, the learned counsel for the appellants relied on the judgment of the Hon'ble Supreme Court in Prem Singh and others Vs. Birbal and others reported in AIR 2006 SC 3608 wherein it is held as under:
“13. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption.” 16.6 In yet another case in Rattan Singh and others Vs. Nirmal Gill and others reported in (2021) 15 SCC 300 the Hon'ble Supreme Court has held as under:
“ A registered document prima facie would be valid in law. The onus of proof would be on a person who leads evidence to rebut the presumption.” 42/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 16.7 On a careful perusal of the above judgments it is clear that once a document is registered under the Registration Act, there is a presumption that the document has been executed and the same is genuine and valid.
The contrary is to be proved by the opposite party who disputed the documents.
16.8 In this context, P.W.1 in her evidence stated that :
“ 24/07/1997k; ehs;. ehd; ghfghj;jpa
tpLjiyg;gj;jpuk;. gpujpthjpfSf;F vGjpf;
bfhLj;Js;sjhff; Twpa[ss
; ij ehd; kWf;fpnwd;/
gpujpthjpfs; Fwpg;gpl;Ls;s y;lRkdrhkp eha[L.
rPdpthrd; ,th;fs; Kd;dpiyapy; g";rhaj;J ngrp.
nkw;brhd;d midj;ij ehd; vGjpf;bfhLf;ftpy;iy/” 16.9 Therefore from the above said evidence of P.W.1 it reveals that she admitted the execution of the deed but she denied the nature of document. According to the plaintiff she only executed the deed in respect of transfer of patta and for obtaining loan. While so it is the duty of the plaintiff to prove her contention. In order to prove her contention, no sufficient evidences were adduced by her. Further, the same plaintiff at the 43/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 time of cross-examination stated that :
“ 24/07/1997k; njjpad;W ehd; g";rhaj;jhh;fs;
Kd;dpiyapy; ghf ghj;jpa tpLjiyg;gj;jpuk; vGjp
gjpt[ bra;J bfhLj;Jtpl;nld; vd;why; mJ jtW.
gl;lhkhWjYf;Fk;. fld; th';Ftjw;fhft[k; ifbaGj;J ntz;Lbkd;Wnfl;ljhy; jk;gpkfd;jhnd vd;gjhy;
mtiu ek;gp ehd; ifbaGj;J nghl;Lf;bfhLj;njd;.
gjpt[ mYtyfj;jpy; ehd; ifbaGj;Jg;nghl;lJ.
cd;ik jhd;/ Mdhy; me;j ifbaGj;J vjw;fhf
vd;W vdf;F bjhpahJ/”
16.10 Therefore P.W.1 admitted that she affixed her signature in the registerar office. However, she denied the nature of the document. While so, she has to prove that the document was not executed for that particular purpose. Moreover in the document Ex.B7 there is an endorsement made by the plaintiff in the presence of Sub-Registrar in respect of receipt of the amount. Therefore, the contention of the plaintiff that she does not know about the nature of document and she only executed the document for the purpose of getting loan and transfer of patta, is not an acceptable one. Further as per Section 58 of the Registration Act read with Rule 91 of the Registration Rules, there is a presumption about the receipt of amount. The available evidence shows that the plaintiff had executed the release deed in 44/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 favour of the defendants and his mother Kaliammal. Thus the point is answered.
17. Point No.4: Whether the mother of the plaintiff namely Kaliammal executed the settlement deed in favour of 1st and 2nd defendants through Ex.B18 ?
During the pendency of the appeal, this Court remanded the case for examination of witnesses in respect of the Wills which are marked as Exs.A1 and B5 and called for the findings of the trial Court. Before the trial Court, P.W.2 was recalled and examined and Ex.A8 was marked. On the side of the defendants, D.W.2 and D.W.3 were examined and marked Exs.B14 to B20. Ex.A8 is the certified copy of the Will dated 21.11.1996. Ex.B15 is the copy of the power deed dated 21.11.1996 and Ex.B16 is the copy of cancellation of power deed dated 14.09.1997. Ex.B17 is the copy of Will dated 02.07.1997and Ex.B18 is the copy of settlement deed executed in the year 1997. Ex.B19 is the copy of affidavit filed before the High Court in O.P.No.246/2012 and Ex.B20 is the order copy in O.P.No. 246/2012 on the file of this Court.
45/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 17.1 On a careful perusal of the said document Ex.B18, it reveals that the mother of the plaintiff namely Kaliammal had executed the settlement deed in favour of the 2nd and 3rd defendants in respect of the 2nd Item of the suit schedule properties. In the above said settlement deed, one Kaliswaran and one Lakshmanaswamy were attested but those persons have not been examined as witnesses. The defendants have not examined any witnesses to prove the settlement deed and they failed to prove the execution of settlement deed and failed to produce the original settlement deed.
17.2 In this context the learned counsel appearing for the appellants has relied on the judgment in Rattam Singh and others Vs. Nirmal Gill and others reported in (2021) 15 SCC 300. On a careful perusal of the of the said judgment it is clear that there is a presumption that if a registered document is validly executed, the onus of proof is on one who rebuts it.
17.3 He further relied on the judgment in (i) R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P.Temple and another reported in (2003) 8 SCC 752 (ii) Appaiya Vs. Andimuthu alias Thangapandi and others reported in 2023 SCC OnLine SC 1183. On a 46/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 careful perusal of the said judgments it is clear that the certificate copy of the public documents can be received as secondary evidence.
17.4 Further he relied on the judgment in Govindbhai Chhotabhai Patel and others Vs. Patel Ramanbhai Mathurbhai reported in (2020) 16 SCC 255. On a careful perusal of the said judgment it is clear that when the execution of Gift Deed is denied Proviso of Section 68 of the Evidence Act will not apply and the allegation of fraud, the necessary particulars must be stated in the pleadings. Denial of a fact is evasive not specific, then it shall be taken as admitted. But in the case on hand though the appellants have marked the certificate copy of the settlement deed and the same is admissible in evidence, the respondents have specifically denied the execution of the settlement deed, but the appellants failed to examine any attesting witness and no pleadings about the said settlement deed and the same was marked after remandig the case to trial Court. Without any pleadings, the said document was marked. Therefore the said cases are not applicable to the facts of the present case.
47/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 17.5 In the written statement also they have not stated anything about the alleged settlement deed. Further the learned counsel appearing for the respondent / plaintiff also relied on the judgment in Tamilkodi Vs. Kalaimani and another reported in 2015 4 CTC 771. On a careful of the said judgment, it is seen that in order to prove the settlement deed, at lease one of the attesting witness has to be examined. But in the case on hand no attesting witness examined. In view of the said discussions this Court is of the opinion that the defendants failed to prove the execution of settlement deed Ex.B18. Thus the point is answered.
18. Point No.5 Whether the plaintiff is entitled to decree for declaration in respect of 1st Item of the suit schedule properties?
The plaintiff sought for the relief of declaration in respect of 1st Item of the suit property stating that the property belonged to her parents and they partitioned the property in the year 1988. The half share of the said property was allotted to the mother of the plaintiff. Her mother executed the Will in her favour through Will dated 21.11.1996. But, in the previous point it has been decided that the Will has not been proved and therefore the plaintiff is not entitled to the relief of declaration in respect of 1st Item 48/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 of the suit schedule properties.
19. Point No.6: Whether the plaintiff is entitled to recovery of possession in respect of 1st Item of the suit schedule properties?
In the previous point this Court decided that the plaintiff is not entitled to decree for declaration in respect of 1st Item of suit schedule property and thereby she is not entitled to the consequential relief of recovery of possession also. Thus the point is answered.
20. Point No.7 Whether the plaintiff is entitled to the relief of partition over the properties Item 2 to 4?
According to the plaintiff, the 1st Item of the suit schedule properties belonged to her mother and she executed a Will and thereby she is entitled to declaration and to recovery of the possession of the property. But the plaintiff failed to prove the said Will. According to the defendants, the mother of the plaintiff executed the settlement deed in respect of half share of the 1st and 2nd Items of the suit schedule properties. According to the defendants, 1st and 2nd Items of the suit schedule properties are indivisible and the total extent is available without any partition. Therefore the 49/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 plaintiff has failed to prove that the 1st and 2nd Items of the suit schedule properties are available for partition. Moreover according to the plaintiff, the said 1st and 2nd Items of the suit schedule properties were acquired by the Government under the land Ceiling Act and patta was granted to 24 persons. However, their names have not been mentioned and no documents were produced by either parties to show that the properties are available for partition.
20.1 The defendants themselves admitted that the mother of the plaintiff namely Kaliammal executed a settlement deed in respect of the 1 st Item of the suit schedule property. But the said contention has not been proved by the defendants. According to the defendants, 1st and 2nd Items of the suit schedule properties along with 33 acres have been allotted to 24 persons of the family members by the Government. While so, without any documents, it is not appropriate to award partition of the properties. The plaintiff can file a fresh suit by producing sufficient documents in respect of the 1st and 2nd Items of the suit schedule properties. 50/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 20.2 As far as the 3rd and 4th Items of the suit schedule properties are concerned, according to the defendants, the grandfather of defendants 2 and 3 and the father-in-law of the first defendant executed a Will dated 12.10.1978 and he died in the year 02.03.1982. After his demise, the Will came into force and thereby the defendants 2 and 3 are in exclusive possession and enjoyment of the properties. This Court, in the previous point, decided that the defendants have proved the execution of the Will i.e. Ex.B5. Therefore, the plaintiff is not entitled to share over the properties in item 3 and 4 suit properties. Thus the point is answered.
21. Point 8:Whether the decree and judgment passed by the trial Court are sustainable in law and on facts?
Before the trial Court the plaintiff has filed a suit for declaration in respect of 1st Item of the suit schedule property and the partition over the properties of 2nd and 3rd Items of the suit schedule properties. The trial Court has framed proper issues and after elaborate discussions, held that the 1st Item of the suit schedule properties belongs to the plaintiff and the plaintiff is entitled to ¼ share over the remaining 2nd to 4th Item of the properties.
51/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 21.1 The trial Court failed to consider that the Will dated 21.11.1996 which is in favour of the plaintiff has not been proved in accordance with law and one of the attesting witnesses is the daughter of the plaintiff and the another independent witness who attested the Will has not been examined by the plaintiff. Therefore, there are suspicious circumstances over the execution of the Will. Further, the plaintiff has not filed any other documents and the plaintiff has failed to explain as to why the property was under the enjoyment of the defendants when the first item of the property was bequeathed to her through Will and why she had not taken possession has to be explained. But there is no explanation. The above said aspect has not been considered by the Trial Court.
21.2 As far as 2nd Item of the suit schedule property is concerned, as per the defendants, the said property was allotted to the family of the plaintiff and others and joint patta was also granted by the Government after acquiring lands through Land Ceiling Act. The plaintiff also not in a position to explain how the 1st and 2nd Items of the suit schedule properties belonged to the family of the plaintiffs and to what extent 1st and 2nd Items of the suit schedule properties are available for partition. Without 52/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 documents, the trial Court has awarded for partition. Further, the trial Court failed to consider that the Ex.B5-Will was executed by the grandfather of the 2nd and 3rd defendants in their favour and after his demise, the Will came into force in the year 1982 and they are in possession and enjoyment of the properties. The plaintiff has also not taken any steps immediately after the demise of her father and the suit has been filed in the year 2008 after a long gap. Therefore, the decree and judgment of the trial Court are unsustainable and the same are liable to be set aside.
21.3 This Court in previous points decided that the plaintiff is not entitled to the relief of partition in respect of 3rd and 4th Items of the suit schedule properties and in so far as 1st and 2nd Items are concerned, the plaintiff has not produced any documents. According to the defendants, the plaintiff executed the release deed in respect of family properties in favour of the defendants and mother of the plaintiff namely Kaliammal. Therefore, the properties were released to the mother of the plaintiff also. After the demise of Kaliammal, the share of Kaliammal goes to her legal heirs and thereby the plaintiff is entitled to share over the properties. The defendants have failed to prove the settlement deed executed by the 53/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 deceased Kaliammal and thereby the share relinquished by the plaintiff in favour of Kaliammal has to be divided between the heirs of Kaliammal. The plaintiff is also one of the heirs of Kalimmal and she is entitled to share over the properties of Kaliammal. Therefore the plaintiff is at liberty to file a fresh suit by producing relevant documents in respect of 1st and 2nd Items of the suit schedule properties, if so advised.
22. In the result, the appeal suit is allowed and the judgment and decree dated 28.04.2011 made in O.S.No.144 of 2008 on the file of Additional District Judge, Fast Track Judge, Dindigul are hereby set aside and the suit is dismissed. No costs. Connected miscellaneous petition is closed.
30.04.2024 Index: Yes / No Speaking order / Non speaking order Neutral Citation : Yes / No bkn Copy to:
The Additional District Judge, Fast Track Judge, 54/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 Dindigul.
55/56 https://www.mhc.tn.gov.in/judis A.S. (MD) No.63 of 2011 P.D.DHANABAL, J., bkn A.S. (MD)No. 63 of 2011 30.04.2024 56/56 https://www.mhc.tn.gov.in/judis