Madras High Court
Dr.A.C.Murugesan vs C.Veluchamy (Died) on 26 July, 2018
Author: M.Sundar
Bench: M.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 26.07.2018
RESERVED ON : 18.07.2018
DELIVERED ON : 26.07.2018
CORAM
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A(MD)No.1186 of 2006
and
M.P.[MD]No.2 of 2006
1.Dr.A.C.Murugesan
2.M.Sharmila Devi : Appellants
Vs.
1.C.Veluchamy (died)
2.C.Shanmugam (died)
3.C.Pandikannan
4.V.Gnanambal
5.Rajeswari
6.Jegatheeswari
7.V.Prabhakaran
8.S.Masilamani
9.Manomani : Respondents
[Respondents 4 to 7 are brought on record as Legal heirs of deceased
Respondent No.1 and Respondents 8 and 9 are brought on record as Legal Heirs
of deceased Respondent No.2 vide order dated 07.02.2013, made in
M.P.[MD]Nos.1 to 6 of 2011 in S.A.[MD]No.1186 of 2011]
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure Code,
against the Decree and Judgment in A.S.No.46 of 2003, on the file of the
Principal District Judge, Madurai dated 14.10.2005 reversing the Decree and
Judgment in O.S.No.553 of 1994 dated 12.12.2002, on the file of the Principal
Subordinate Judge, Madurai.
!For Appellants : Mr.M.V.Venkataseshan
^For Respondents 3 to 9 : Mr.V.Srinivasan
:JUDGMENT
Adversaries in this lis are half brothers. Adversaries in this lis are sons of one A.Chockalingam. On one side is one Dr.A.C.Murugesan, only son of A.Chockalingam, through his first wife Thangammal. On the other side are A.Chockalingam's three sons C.Veluchamy, C.Shanmugham and C.Pandikannan, through his second wife Rukmaniammal. Dr.A.C.Murugesan's daughter M.Sharmila Devi, is also party to the lis.
2.The genealogy as set out in the plaint is extracted and reproduced infra for the sake of clarity. Genealogy as contained in paragraph No.3 of the plaint is as follows:
A.Chockalingam (Died on 7-1-93) Thangammal Rukmaniammal (First wife) (Second wife) Died on 22-11-1993 Died in the year 1972 Dr.A.C.Murugesan (First defendant) Minor Sharmila Devi (Second defendant) Veluchamy Shanmugham Pandikannan (P1) (P2) (P3)
3.To be noted, there is no dispute or disagreement with regard to the aforesaid genealogy.
4.This litigation commenced when aforesaid Dr.A.C.Murugesan, filed a suit in O.S.No.600 of 1994, on the file of Additional District Munsif Court, Madurai Town, on 26.04.1994. Aforesaid C.Veluchamy, C.Shanmugham and C.Pandikannan, on 25.05.1994 filed a suit in O.S.No.553 of 1994, on the file of 'Principal Sub Court, Madurai' hereinafter referred to as 'trial Court', for the sake of convenience and clarity. To be noted, aforesaid suit filed by Dr.A.C.Murugesan was also transferred to the trial Court and assigned the number O.S.No.600 of 1994.
5.Going by the suit numbers in their sequence, 'O.S.No.553 of 1994' is referred to as 'senior suit' and 'O.S.No.600 of 1994' is referred to as 'junior suit'. As the instant second appeal arises out of senior suit, the parties in the instant second appeal are referred to by their respective ranks in the senior suit. In other words, 'C.Veluchamy, C.Shanmugham and C.Pandikannan' are collectively referred to as 'plaintiffs'. If need arises to refer to them independently, they would be referred to as 'first, second and third plaintiff', respectively. 'Dr.A.C.Murugesan and his daughter M.Sharmila Devi' shall be collectively referred to as 'defendants' (based on their rank in the senior suit) and wherever need arises to refer to them independently, they shall be referred to as 'first and second defendants' respectively.
6.Nucleus of the litigation is a property being land admeasuring 5 cents or thereabouts with superstructure thereon being Plot No.8, Door No.29- A, Sankar Nagar Second Street, Madurai. For the purpose of clarity, the schedule of property as set out in the plaint is extracted and reproduced infra. The same reads as follows:
?SCHEDULE OF PROPERTY Madurai District, Tallakulam Sub. District, Madurai North Taluk, Tallakulam Village, K.Pudur, Sankar Nagar Second Street in R.S.No.177/1, Block No.3 house building bearing Plot No.8, Door No.29-A, (Assessment No.7704) measuring 5 cents which is situate within the following four boundaries and measurements:
North by : East-West Road
South by : Plot No.8 in Block No.4
East by : Plot No.9 in Block No.3
West by : Plot No.7 in Block No.3
within these the house building measuring East-West on the northern and southern sides 36 feet; and North-South on the eastern and western sides 61 feet; with all the appurtenances.?
7.The aforesaid property shall hereinafter be referred to as 'suit property', for the sake of convenience and clarity.
8.Senior suit was filed by the three plaintiffs, seeking partition of the suit property and 1/4th share to each of them. In other words, it is the plea of the three plaintiffs that the three plaintiffs and the first defendant are entitled to 1/4th share in the suit property, which admittedly is the self acquired property of aforesaid Chockalingam, who acquired the same by a sale deed dated 19.07.1962 (Ex.A.1).
9.The junior suit was filed by first defendant (Dr.A.C.Murugesan), against the three plaintiffs with prayers for injunction qua suit property.
10.Both the suits were tagged and tried together.
11.With regard to the pleadings in the trial Court, it is not in dispute between the adversaries that Chockalingam executed a registered Will dated 12.10.1987 (Ex.B.1 = Ex.A.29). Thereafter, Chockalingam executed a registered Power of Attorney document dated 20.10.1992 (Ex.A.36) appointing one Kandasamy as Power of Attorney agent qua suit property. It is also not in dispute that Kandasamy as Power of Attorney, acting on the strength of Ex.A.36 conveyed the suit property to second defendant i.e., M.Sharmila Devi, in and by a registered sale deed dated 04.11.1992 (Ex.A.37).
12.It is also not in dispute that first defendant signed as a attesting witness in Ex.A.36, Power of Attorney document.
13.In the backdrop of the aforesaid undisputed factual matrix, plaintiffs pleaded that first defendant, being a medical Doctor by profession, took advantage of the situation. It is their specific case that the first defendant, who was practising in Kambam, took Chockalingam away to Kambam and managed to get Ex.B.1, Will executed by him. It is also their case that first defendant has master minded Exs.A.36 and A.37 also to ensure that the suit property is in his kitty.
14.Contradicting the aforesaid pleadings, the plea of the defendants was that the Will is genuine. It is also their plea that Ex.A.36, Power of Attorney document and Ex.A.37, sale deed are also genuine. It is the further case of the defendants that the plaintiffs did not take care of their father Chockalingam and had abandoned him. It is also defendants' case that the first defendant was the care giver for Chockalingam. To be noted, written statement was filed by first defendant and adopted by second defendant. Therefore, this is a common plea on the side of the defendants. On the aforesaid rival pleadings, the trial Court framed issues which are three in number and the same reads as follows:
?1. thjpfs; nfhhpago jhthr; brhj;Jf;fspy; 3/4 gq;F ghfr; brhj;J mth;fSf;F fpilf;fj;jf;fjh?
2. brhf;fypq;fk;> 1k; gpujpthjpf;F Mjuthf gjpt[ bra;ag;gl;l capy; vGjpitj;Js;shuh?
3. thjp bgWk; ,ju ghpfhuk; ahJ??
15.Parties went to trial on the aforesaid issues.
16.On the side of plaintiffs, third plaintiff Pandi Kannan examined himself as P.W.1 and as many as 43 documents were marked as Exs.A.1 to A.43. On the side of the defendants, first defendant, Dr.A.C.Murugesan, examined himself as D.W.1. One Gunasekaran, scribe of Ex.B.1 = Ex.A.29 Will and one Jayaraman, attesting witness of the said Will were examined as D.W.2 and D.W.3, respectively. On the side of defendants, 5 documents i.e., Exs.B.1 to B.5 were marked.
17.After full contest and trial, the trial Court dismissed both the suits i.e., senior suit and junior suit, vide common judgment dated 12.12.2002.
18.Aggrieved, plaintiffs carried the matter in appeal by way of a regular first appeal under Section 96 of 'Code of Civil Procedure, 1908' [hereinafter referred to as 'CPC' for brevity]. This regular first appeal is A.S.No.46 of 2003, on the file of 'Principal District Judge's Court, Madurai', which shall hereinafter be referred to as 'first appellate Court', for the sake of convenience and clarity. To be noted, this Court is informed in the hearing that the first defendant did not carry the matter in appeal qua dismissal of his suit i.e., junior suit.
19.In the aforesaid first appeal, the defendants were arrayed as respondents, who entered appearance and contested the appeal. First Appellate Court formulated points for determination / consideration which are four in number and they are as follows:
?1. Whether the execution and attestation of Ex.B.1 Will dated 12.10.1987 have been duly proved?
2. Whether Ex.A.37 sale deed dated 04.11.1992 is legally valid and binding on the plaintiffs?
3. Whether the plaintiffs are entitled for partition of the suit property, consequent upon the legal validity of Ex.B.1 and Ex.A.37?
4. To what relief are the appellants entitled??
20.After full contest and hearing, vide judgment and decree dated 14.10.2005, the first appellate Court reversed the dismissal decree of the trial Court and decreed the senior suit. In other words, the first appellate Court passed a preliminary decree for partition as prayed for in the senior suit.
21.Aggrieved, defendants have carried the matter to this Court by way of instant second appeal, arraying the three plaintiffs as respondents. Instant second appeal was filed on 04.12.2006. This Court issued notice but did not admit the second appeal. In other words, this second appeal has not been admitted but post notice, this second appeal is now before this Court for final hearing. With the consent of both sides, the instant second appeal has been taken up for final disposal.
22.To be noted, pending second appeal, plaintiffs 1 and 2 (arrayed as respondents 1 and 2, respectively) died and their legal heirs have been brought on record as respondents 4 to 9.
23.On the side of defendants/appellants, Mr.M.V.Venkataseshan, learned Counsel was before this Court. On the side of plaintiffs/respondents, Mr.V.Srinivasan, learned Counsel was before this Court.
24.This Court heard both sides.
25.Before proceeding with the discussion in the instant second appeal, it may be necessary to encapsulate and set out in a nutshell, the reasoning of the trial Court for dismissal of the suit as well as the reasoning of the first appellate Court for reversing the same and allowing the appeal.
26.In sum and substance, the trial Court held that Ex.A.37, sale deed is valid and the plaintiffs were non-suited on this ground. In this regard, it may be necessary to quickly restate four dates. Ex.B.1 = Ex.A.29 Will, under which Chockalingam bequeathed suit property to first defendant is dated 12.10.1987. Power of Attorney document executed by Chockalingam appointing one Kandasamy as Power of Attorney agent qua suit property (Ex.A.36) is dated 20.10.1992. The sale deed executed by Power of Attorney agent (on the strength of Ex.A.36) in favour of second defendant, conveying the suit property to the second defendant is dated 04.11.1992 (sale deed is Ex.A.37). Chockalingam died on 07.01.1993.
27.To be noted, this sale deed Ex.A.37, has been executed in Parasala, Kerala, but the suit property is situate in Tamil Nadu.
28.The reasoning of the trial Court is that Ex.A.37 is valid on execution of Ex.A.37, Chockalingam seems to be owner of the suit property, suit property stood conveyed to second defendant vide Ex.A.37 being an inter vivos document during the life time of Chockalingam and therefore, it is not available for partition amongst the plaintiffs and first defendant. On this broad basis, the trial Court non-suited the plaintiffs. The reasoning of the first appellate Court for reversing the dismissal decree of the trial Court is Ex.A.37 is not valid having been executed in Parasala, Kerala (property being in Tamil Nadu) in the light of the amendment to the Registration Act, which kicked in on 29.03.1997. Interestingly and intriguingly, the first appellate Court also holds that Ex.A.36, Power of Attorney document is valid and on execution of the sale deed Ex.B.1 = Ex.A.29, Will has no value at all. Categoric finding of the first appellate Court in this regard reads ?After execution of Ex.A.36, Ex.B.1 would no longer be in operation. In a nutshell, Ex.B.1, has no value at all?.
29.However, the first appellate Court went on to hold that the plaintiffs are entitled to partition in the light of the legal defects surrounding Ex.B.1 and Ex.A.37.
30.In the trial Court, first defendant, who was examined as D.W.1, has categorically admitted that he signed as an attesting witness in Ex.A.36, Power of Attorney document. Furthermore, both the Courts below believed the Will.
31.In the hearing of the instant second appeal before this Court, Mr.M.V.Venkataseshan, learned Counsel for defendants / appellants submitted that Ex.A.37, sale deed is not valid in the light of the amendment to Registration Act, which kicked in on 29.03.1997. According to learned Counsel for defendants / appellants, when Ex.A.37 is void ab initio, Ex.A.36 is of no consequence and therefore, the Will operates. If the Will operates, the first defendant is entitled to the suit property is his say.
32.Be that as it may, this Court is of the view that what is critical and crucial is Ex.A.36 Power of Attorney document dated 20.10.1992, which without dispute or disagreement between the parties at lis is a valid document. To be noted, as alluded to supra, first defendant has signed as an attesting witness in Ex.A.36.
33.Leaving open the question as to whether Ex.A.37, sale deed is void ab initio or voidable, the instant second appeal can be resolved by addressing oneself to the question as to whether Ex.B.1 = Ex.A.29, Will dated 12.10.1987 stood revoked by the execution of Ex.A.36 registered Power of Attorney document on 20.10.1992. The testator, after executing the Will on 12.10.1987, has executed a power of attorney document qua suit property, obviously with an intention to alienate the suit property which has been bequeathed by him in favour of the first defendant under the Will. Therefore, if the intention of the testator was to alienate the suit property, it is a clear departure from the testament i.e., Will. In other words, the testator has changed his mind. Testator has originally decided to bequeath the suit property in favour of Dr.A.C.Murugesan, and subsequently has changed his mind five years later and decided to alienate and convey the suit property. That it was for conveying the suit property to second defendant who is none other than the daughter of sole beneficiary under the Will is of no consequence, it does not rob the factual matrix of this case of the 'change of mind' aspect. For testing whether there was revocation of a testament, what matters is 'change of mind' and not whose favour it is. Therefore, the testator has changed his mind. However, learned Counsel for defendants / appellants brought up a legal issue that Ex.A.36 is not a revocation of the Will, within the meaning of Section 70 of the Indian Succession Act, 1925 (39 of 1925), which shall hereinafter be referred to as 'said Act'. Section 70 of the said Act reads as follows:
?70.Revocation of unprivileged Will or Codicil. - No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.?
34.Before we examine this legal submission, it is to be noted that defendants / appellants as protagonists of this second appeal have proposed and propounded two questions, styling them as substantial questions of law and the same read as follows:
?A) Whether the Lower Appellate Court is right in held that Ex.A.37 is a void document only because of substitution of Sec.28 in the Registration Act by the Tamil Nadu Registration (Amendment Act 1997) (Tamil Nadu Act 19/97) when admittedly Ex.A.37 was executed and registered in the year 1992 in Kerala and when the amendment provision has no retrospective operation?
B) Whether the Lower Appellate Court is right in decreeing the suit when even if Ex.A.37 is found to be void, Ex.B.1 WILL takes effect as its validity is accepted by both the Courts below??
35.This Court has applied its mind to the aforesaid questions of law proposed / propounded by the defendants / appellants in the memorandum of grounds of appeal. In the light of the factual matrix, narrative supra and the trajectory of the litigation and reasoning of the trial Court as well as the first appellate Court which have all been alluded to supra, this Court has also tested using as a touch-tone, the Rimmalapudi principle laid down in a celebrated Rimmalapudi Subba Rao's case reported in AIR 1959 Madras 969, wherein a Full Bench of this Court explained what exactly is the 'substantial question of law'. In other words, this Court tested the aforesaid questions on the touch-tone of Rimmalapudi Subba Rao's case. To be noted, Rimmalapudi Subba Rao's case is holding the field as the same was affirmatively referred to by a Constitution Bench of the Hon'ble Supreme Court in Chunilal V.Mehta's case, reported in AIR 1962 SC 1314 and it has been followed until this day, including Santosh Hazari's case reported in (2001) 3 SCC 179 as also Malan Bi's case reported in (2016) 10 SCC 315.
36.In the light of the discussion, narrative supra and in the light of the trajectory of the Courts below, it emerges very clearly that the aforesaid questions proposed by defendants / appellants as protagonists of the instant second appeal neither arise for consideration nor qualify as substantial questions of law in the Rimmalapudi principle.
37.On the other hand, the legal argument raised in the hearing that Ex.A.36 does not amount to revocation of Ex.B.1 = Ex.A.29 Will as it is not in conformity with Section 70 of said Act can be construed as a substantial question of law. This issue is extremely pivotal and critical as the entire lis hinges on the question as to whether Ex.B.1 = Ex. A.29 Will was revoked or not. If it stood revoked, plaintiffs are entitled to partition and they succeed. If it has not been revoked (by Ex.A.36), either first defendants or the second defendants (in any case the defendants) get the suit property and therefore, the plaintiffs will get non-suited. In this backdrop, this Court formulates the substantial question of law and the same reads as follows:
?Whether Ex.A.36 Power of Attorney document dated 20.10.1992 can be construed as a revocation of Ex.B.1 = Ex.A.29 Will dated 02.10.1987, within the meaning of Section 70 of the Indian Succession Act, 1925 (39 of 1925)??
38.Section 70 of the said Act has already been extracted and reproduced supra.
39.Let us now discuss the aforesaid substantial question of law.
40.A perusal of Section 70 of said Act reveals that revocation of Ex.B.1 = Ex.A.29 Will can be by three modalities which are otherwise than by marriage. Modality No.1 is another Will or codicil. Modality No.2 is 'some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed'. Modality No.3 is 'by burning, tearing or otherwise destroying the same by the testator or some other person in his presence and by his direction with the intention of revoking the same'.
41.We are concerned with the second modality i.e., whether Ex.A.36 will qualify as a writing declaring an intention to revoke the Will and whether Ex.A.36 has been executed in the manner in which an unprivileged Will is hereinbefore required to be executed. To be noted, there is disagreement before this Court that the other two modalities do not exist in the instant case.
42.To be noted, the manner in which an unprivileged Will is required to be executed is adumbrated in Section 63 of the said Act, which reads as follows:
?63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence an dby his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.?
43.This Court has carefully perused and applied its mind to Ex.A.36. There is no doubt that Ex.A.36 Power of Attorney document has been signed by the testator, that the testator's signature was so placed that it appears that it was to give effect to the document and Ex.A.36 which was attested by two witnesses, each of two seeing Chockalingam sign in Ex.A.36, in the presence of one another. In other words, Ex.A.36 definitely qualifies as a document executed in the manner in which an unprivileged Will is required to be executed under the said Act. The moment Ex.A.36 qualifies as a document executed in a manner in which an unprivileged Will is required to be executed under the said Act, the issue moves to the next question as to whether it is a declaration of an intention to revoke the same. In this regard, two aspects of the matter in the backdrop of the factual matrix of the instant case needs to be looked into. One aspect is, the sole beneficiary under Ex.B.1 = Ex.A.29 has signed as one of the two attesting witnesses in Ex.A.36. Not only has he signed as an attesting witness in Ex.A.36, he has also been examined as D.W.1 in the trial Court and deposed in the trial Court that he did sign as an attesting witness in Ex.A.36. The second aspect is the expression 'some writing declaring an intention' occurring in Section 70 of said Act necessarily means a direct, explicit and express declaration or can it be an implied declaration, which can be inferred not only from the document but also from the manner in which the document has been executed.
44.This Court is of the considered view that the declaration of intention need not always be express and explicit and in a given case, it can also be implied and inferred. The reason is, the extreme sanctity given to a document like Will, as it is not yet another document, but a testament. In interpreting the Will, the intention of the testator from the arm chair of the testator is paramount and for this purpose, it may not be appropriate to say that any writing should always be express, explicit and should not be one that can be implied or inferred. In the instant case, in the backdrop of the factual matrix wherein and whereby the sole beneficiary under the Will (Ex.B.1 = Ex.A.29), having signed as one of the two attesting witnesses and having reiterated by deposing about the same in the trial Court would clearly show that it is a declaration of the intention of the testator to revoke the Will. This is more so, as the sole beneficiary under the testament has been taken into confidence. Therefore, the declaration of intention to revoke Ex.B.1 = Ex.A.29 Will can clearly be inferred from the manner in which Ex.A.36 has been executed. Therefore, Ex.A.36 clearly qualifies as a 'writing declaring an intention to revoke the same', being the expression occurring in Section 70 of the said Act.
45.In the light of the discussion and narrative supra, this Court has no difficulty in answering the lone substantial question of law formulated and set out supra, in favour of respondents / plaintiffs and against appellants / defendants, by holding that Ex.A.36 Power of Attorney document dated 20.10.1992, has in fact revoked Ex.B.1 = Ex.A.29 Will dated 12.10.1987.
46.The lone substantial question of law on which the instant second appeal turns, having been answered against appellants / defendants and in favour of respondents / plaintiffs, the instant second appeal fails and the same is dismissed. This second appeal is dismissed, confirming the judgment and decree of the first appellate Court (albeit for different reasons), wherein and whereby the first appellate Court has reversed the dismissal decree of the trial Court and decreed the partition suit, by passing a preliminary decree therein.
47.Second Appeal stands dismissed. Considering that the adversaries are half brothers and also taking into account the nature and trajectory of the litigation thusfar, the parties are left to bear their respective costs. Consequently, the connected miscellaneous petition is closed.
To
1.The Principal District Judge, Madurai.
2.The Principal Subordinate Judge, Madurai.
3.The Section Officer, E.R.Section/V.R.Section, Madurai Bench of Madras High Court, Madurai.
.