Madras High Court
M.K. Ravi vs M.K. Giri on 14 September, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 09.07.2018 Pronounced on : 14.09.2018 Coram The Hon'ble Mr. Justice C.V.KARTHIKEYAN C.S.No.733 of 2008 and T.O.S.No.3 of 2009 and A.No.4088 of 2012 in O.A.No.855 of 2008 in C.S.No.733 of 2008 C.S.No.733 of 2008: 1.M.K. Ravi ...Plaintiff Vs 1.M.K. Giri 2.M.K. Mala 3.M.K. Kala ...Defendants T.O.S.No.3 of 2009: 1. P. Archana ...Plaintiff Vs 1. M.K. Giri 2. M.K. Mala 3. M.K.Kala 4. K.Manoj 5. M.K.Ravi ...Defendants Prayer in C.S.No.733 of 2008: This Civil Suit filed under Order IV Rule 1 O.S. Rules read with Order VII Rule 1 CPC, praying for a Judgment and Decree against the defendants: (a). for partition of the schedule mentioned properties by metes and bounds and allotting < share in the said properties in favour of the plaintiff and put the plaintiff herein into possession of the same. (b). directing the defendants to render accounts with respect to the suit properties from the date of plaint and pay to the plaintiff. (c). for the costs of the suit. (d). for such other reliefs as this Hon'ble Court may deem fit to pass. Prayer in T.O.S.No.3 of 2009: This Testamentary Original Suit filed under Sections 213, 234, 278, 280 and 300 of the Indian Succession Act read with order XXV Rule 5 O.S. Rules, the petitioner praying to grant a Letter of Administration with the last Will dated 15.03.1995 of the deceased Smt.K.Saroja Bai annexed to it, to the petitioner having effect throughout the State of Tamil Nadu in so far as the specific house property more fully described in the schedule hereunder bequeathed to the petitioner. Prayer in A.No.4088 of 2012 in O.A.No.855 of 2008 in C.S.No.733 of 2008: This application filed under Order XIV Rule 8 of Original Side Rule r/w Order 39 Rule2-A of CPC, to punish the 2nd and 3rd respondents / defendants for committing disobedience of the orders passed by this Honourable Court, dated 25.08.2010 made in O.A.No.855 of 2008 in C.S.No.733 of 2008. C.S.No.733 of 2008:- 1. For Plaintiff - Mr.T.D.K.Govindarajan 2. For D1 - Mr.S.Rameshkumar 3. For D2 - Mr.S.Ashok Viswanath 4. For D3 - Mr.A.Vivek T.O.S.No.3 of 2009:- 1. For Plaintiff - Mr.Ashok Viswanath 2. For Defendants - Mr.T.D.K.Govindarajan A.No.4088 of 2012 in O.A.No.855 of 2008 in C.S.No.733 of 2008:- For Applicant - Mr.T.D.K.Govindarajan For Respondents - Mr.Ashok Viswanath *** COMMON JUDGMENT
C.S.No.733 of 2008:-
C.S.No.733 of 2008 had been filed by the plaintiff M.K.Ravi against his brother M.K.Giri and sisters M.K.Mala and M.K.Kala, seeking a Judgment and Decree for partition of the schedule mentioned properties by metes and bounds and allotting < share in the said properties to him and to put him in possession and also for a direction against the defendants to render accounts with respect to the suit properties and for costs of the suit.
2.The Plaintiff and the three defendants are sons and daughters of late C.H.Keshava Rao and K.Saroja Bai. The properties which are the subject matter of the suit have been described in schedule-A, schedule-B and schedule-C of the plaint.
3.The schedule-A is land and building in No.3, Shanmuga Mudali Street, Royapettah, Chennai, now known as No.3, Shanmugam Street, Royapettah, Chennai. Schedule-B is the first floor apartment/flat bearing Door No.16/02, College Road, Nungambakkam, Chennai, measuring to an extent of 2900 Sq.ft together with 2900/18000 of undivided shares in the land. Schedule-C is the land and terraced building with 3 stories and premises bearing door No.3, H.Siddiah Road, 5th Cross, Bangalore City to an extent of 2400 sq.ft.
4.The parents of the plaintiff and defendants, namely C.H.Kesava Roa and K.Saroja Bai died on 1.10.1994 and 02.06.1999 respectively. During the life time of the mother, late K.Saroja Bai, the family properties were partitioned through a partition deed dated 02.12.1994. Properties were allotted to the plaintiff and the defendants and also to late K.Saroja Bai.
5.The schedule mentioned properties, were allotted to late K. Saroja Bai. After the partition on 02.12.1994, the properties became the absolute properties of K.Saroja Bai. She died on 02.06.1999 leaving behind the plaintiff and the defendants as her legal heirs.
6.It had been stated in the plaint that the plaintiff was entitled to an undivided 1/4 share in the properties. It had also been stated that the first defendant was collecting rent from the C-Schedule property and the second defendant was collecting rent from A-Schedule property and the third defendant was collecting rent from B-Schedule property. Since the defendants did not come forward to partition the schedule mentioned properties, the plaintiff instituted the suit seeking the reliefs mentioned above.
7.The second defendant M.K.Mala filed her written statement. The first and third defendants adopted the written statement filed by the second defendant. In the written statement of the second defendant, the relationship among the parties had been stated as true. It was also stated that the partition had been effected on 02.12.1994 but, it was stated that the partition was an inequitable partition. It was further stated that K.Saroja Bai was allotted the schedule mentioned properties to her share and they became her her absolute properties. It was, however, further stated that she executed a will dated 15.03.1995. It had been stated that the plaintiff was aware of the said will and had no right to claim a share in the properties. It had been stated that the suit is bad for non-joinder of necessary parties, namely the legatees of the last will of K.Saroja Bai. The second defendant sought dismissal of the suit.
8.On the basis of the said pleadings, the following issues had been on 21.10.2010:-
1. Whether K.Saroja Bai is the mother of the plaintiff?
2. Whether K.Saroja Bai died intestate?
3. Whether the partition pleaded by the parties is true and binding?
4. Whether the plaintiff is entitled for a share, if so what is his share?
5. Whether the will dated 15.03.1995 is the last will of K.Saroja Bai, which was executed by her in sound and disposing state of mind?
6. Whether the suit is bad for non-joinder of necessary parties?.
7. Is the plaintiff entitled for rendition of accounts?
8. Whether the value made by the plaintiff is not correct?
9. Whether the defendant is entitled for exemplary costs?
10. To what relief both parties entitled?
9. The Trial was conducted. The plaintiff M.K.Ravi was examined as PW-1 and Kasthuri Bai, the daughter of the sister of K.Saroja Bai was examined as PW-2. The plaintiff also examined as PW-3, K.Somurao, the father of PW-2. On behalf of the defendants, the subpoena witness B.Revathy, who was working as Chief Manager(H.R & Administration), State Bank of India, Inspection and Audit Department, Corporate Centre, Chennai was examined as DW-1.
10.During evidence, the plaintiff marked Exs-P1 to P8 and the defendants marked Exs.D1 to D9. Exs.D1 to D7 were marked during the cross examination of the plaintiff's witnesses and Exs.D8 to D9 were marked through DW1. Among the documents filed by the plaintiff, Ex.P3 was the certified copy of the partition deed dated 02.12.1994. Ex.D7 series were the signatures of M.K.Ravi, the plaintiff in all pages of the partition deed. Ex.D8 and D9 were the affidavit and letter of undertaking given by the plaintiff dated 15.09.1999 and 16.09.1999.
TOS.No.3 of 2009:-
11.This testamentary and original suit emanated from O.P.No.693 of 2008. O.P.No.693 of 2008 had been filed under Section 213, 234, 278, 280 and 300 of Indian Succession Act of 1925 for grant of letters of administration with respect to the last will and testament said to have been executed by K.Saroja Bai and said to be dated 15.03.1995. The petition had been filed by P.Archana, daughter of Prabhakar Rao Pawar and M.K.Mala. The respondents in the original petition were M.K.Giri, M.K.Mala, M.K.Kala, M.K.Manoj and M.K.Ravi. The petitioner was the grand daugther of the testator K.Saroja Bai. The second, third and fifth respondents were the sons and daughter of K.Saroja Bai. The fourth respondent was the son of the third respondent.
12.In the petition, it had been stated that K.Saroja Bai had executed her last will on 15.03.1995 bequeathing her properties to the legatees named in the will. The will was registered as Document No.09 of 1995 in the office of District Registrar, Madras Central. K.Saroja Bai had not appointed any executor. She had bequeathed the house property at door No.3, Shanmuga Mudali Street, now known as Shanmugam Street, Royapettah, Chennai to the petitioner and another property being first floor flat at door No.16/2, College Road, Nungambakkam, Chennai to the fourth respondent K.Monaj and another house property at door no.3, fifth cross, H.Siddiah Road, Bangalore to the first respondent M.K.Giri.
13.It had been stated that the testatrix K.Saroja Bai died at Chennai on 02.06.1999. The petitioner became a major on 31.08.2004 and the fourth respondent became a major on 27.10.2004. The petitioner being one the legatees filed the petition seeking letters of administration of the last will dated 15.03.1995 executed by K.Saroja Bai with respect to the property at door No.3, Shanmuga Mudali Street, now known as Shanmugam Street, Royapettah, Chennai.
14.It was further stated that the first attesting witness P.Subbarao had died. The petitioner did not know the whereabouts of the other attesting witness. Consequently, the affidavits of the attesting witness were not filed. The petition had been filed only with respect to one property mentioned in the will. The other legatees under the will namely, K.Manoj and M.K.Giri were shown as the fourth and the first respondents. The petitioner sought for the grant of letters of administration.
15.This original petition was converted as TOS.No.3 of 2009 on caveat being filed by the fifth respondent M.K.Ravi. Consequently the petitioner was nomenclated as the plaintiff and the fifth respondent M.K.Ravi was nomenclated as the defendant.
16.The defendant filed his written statement. In the written statement, it had been stated that the parents C.H.Keshava Rao and K.Saroja Bai died on 01.10.1994 and 02.06.1999 respectively. It was further stated that during the life time of K.Saroja Bai the family properties were partitioned through a partition deed dated 02.12.1994 registered as document No.67/1995 on the file of the Sub-Registrar, Triplicane. It was also stated that the schedule mentioned property was one of the properties which had come to the share of K.Saroja Bai under the partition deed. It was stated that K.Saroja Bai died on 02.06.1999 leaving behind two sons and two daughters. They all have an equal undivided < share in the property. The defendant requested his brother and sisters to partition the properties. Since they did not come forward to do so, he had filed C.S.No.733 of 2008. It was only thereafter that O.P.No.693 of 2008 was filed, nine years after the death of the testatrix. It was alleged that the plaintiff had already entered into an agreement on 18.01.2008 to sell the property to third parties. It had been further stated that C.S.No.733 of 2008 was filed on 28.04.2008 and O.P.No.693 of 2008 was presented on 15.10.2008. It had been stated that the delay in filing the original petition had not been explained. It had also been stated it was filed after eight months from the agreement of sale.
17.The defendant specifically stated that the will was fabricated and not genuine. K.Saroja Bai, after the demise of her husband C.H.Keshava Rao, was in a state of shock and depression. She could not have executed the will on 15.03.1995 just five months from the date of death of Keshava Rao on 01.10.1994. There was no reason to exclude the defendant and executing the will only in favour of her other son and daughters.
18.It was further stated that the properties were already partitioned by partition deed dated 02.12.1994. It was stated that the defendant did not have knowledge about the registration of the will. Reasons were not given to disinherit the defendant. Moreover the will was in English and the testatrix did not know English. There was also no clause that the contents were read out and translated in her mother tongue.
19.It was also stated that the plaintiff had become a major on 27.10.2004 and the petition was filed four years later without giving any proper reason for that delay. It was also stated that the first and fourth respondents in the original petition were also legatees and no reason was given why the letters of administration had been claimed only with respect to one of the property mentioned in the Will. It was also pointed out that the statement that the plaintiff does not know the other attesting witness was false. It had been stated that the Testamentary and Original Suit should be dismissed.
20.On the basis of the pleadings, this Court had framed the following issues for trial:-
1. Whether the testatrix Smt.K.Saroja Bai had executed a will on 15.03.1995 in a sound and disposing of mind in presence of two or more attesting witnesses in the will a true and genuine document?
2. If so, whether the will dated 15.03.1995 was the last will of testatrix Smt.K.Saroja Bai?
3. Whether the plaintiff is sought for the grant of letters of administration as prayed for?
4. To What relief, the parties are entitled for? During trial, three witnesses were examined on behalf of the plaintiff, PW1, Kadirvelu, was one of the attesting witnesses to the will. PW3 was the plaintiff. The original will was marked as Ex-P8. Totally, Exs.P1 to P15 were marked. The defendant examined himself as DW1 and another witness Kasthu Bai as DW-2. He marked Exs.D1 to D6. Exs.C1 to C3 were marked as Court Exhibits.
A.No.4088 of 2012 in O.A.No 855 of 2008 in C.S.No.733 of 2008:-
21.This application had been filed under order 39 rule 2-A CPC by the plaintiff in C.S.No.733 of 2008, M.K.Ravi against the defendants, M.K.Giri, M.K.Mala and M.K.Kala to punish the second and third defendants, M.K.Mala and M.K.Kala for committing disobedience of the orders passed by this Court dated 25.08.2010, in O.A.No.855 of 2008 in C.S.No.733 of 2008.
22.In the affidavit filed in support of the said application, it had been stated that the applicant/plaintiff had filed C.S.No.733 of 2008 for partition and separate possession of undivided 1/4 share in the suit properties. He had also filed O.A.No.855 of 2008 seeking and order of injunction restraining the respondents/defendants from dealing with his < share either by mortgage, lease, sale from by altering the structure of the building either through joint venture or otherwise pending disposal of the suit.
23.It was stated that the application was allowed by this court on 25.08.2010. It was further stated that during the pendency of the suit the second defendant had converted the A-Schedule property at door no.3 new no.5, Shanmuga Mudali Street, Royapettah, Chennai into a commercial building and built an additional floor. The interim injunction granted by the Court was violated by altering the structure of the building. It was also stated that the applicant reliably understood that the property had also been conveyed and consideration also received from the tenant, Ravi, who is running a manufacturing unit in screen printing and in commercial banners. It was also stated that the residents of Shanmuga Mudali Street had complained that the building had been converted for commercial purpose without any consent or permission from the authorities.
24.It was further stated that the third defendant was receiving additional rent from the Schedule-B property which is the first floor apartment/flat bearing Door No.16/02, College Road, Nungambakkam, Chennai. She made internal alterations and had not forwarded accounts relating to the rents collected. It was therefore stated that the second and third respondents/defendants had committed disobedience of the order of this Court. A legal notice dated 24.04.2012 was sent. They had sent a reply on the same terms as stated in the counter file in O.A.No.855 of 2008.
25.It was further stated that the order of injunction had become final and was binding on all the parties. It was stated that the second and third respondents/defendants willfully disobeyed the order of this Court. It was therefore stated that they must by punished for disobedience of the order, dated 25.08.2010 passed in O.A.No.855 of 2008.
26.A counter had been filed denying the allegations. It had been stated that the property bearing door no.3, Shanmuga Mudali Street had been bequeathed by a Will dated 15.03.1995 by late K.Saroja Bai to P.Archana, daughter of the second respondent/defendant and the property at first floor apartment/flat bearing Door No.16/02, College Road, Nungambakkam, Chennai, had been bequeathed to K.Manoj, the son of the third respondent/defendant M.K kala.
27.It was specifically denied that there was disobedience of the order of the Court. It had been stated that the respondents are law abiding citizens. It had been specifically stated by the second respondent/defendant that she resides in Bangalore and has no control over the property at Chennai. By the order dated 25.08.2010, this Court had, after hearing the counsel for the applicant and also for respondents and the second and third respondents preferring not to participate but filing counter affidavit, granted an order of interim injunction restraining the respondents/defendants from in any manner dealing with the applicants < shares in the three schedule properties till the disposal of the suit. The order had attained finality since appeal was also not filed.
28.The primary issue to be decided in A.No.4088 of 2012 was whether there had been any violation of the order of this Court dated 25.08.2010 in O.A.No.855 of 2008.
29.This Court had directed evidence to be recorded in A.No.4088 of 2012. Accordingly the applicant M.K.Ravi was examined as PW-1 and his wife Asha Ravi was examined as PW-2. During chief examination, they filed Exs.A1 to A25. These documents included the copies of the counter affidavits filed by the second respondent and third respondent in O.A.NO.855 of 2008 and the certified copy of the order 855 of 2008 marked as Exs.A4,A5 and A6. The complaint given by the residents of Shanmuga Mudali Street, Royapettah, Chennai, was marked as Ex.A13. The office copy of the notice dated 24.04.2012 was marked as Ex.A14. The reply notice sent by the second respondent was marked as Ex.A18 and the returned postal envelope with the endorsement not claimed by the third respondent was marked as A16. Photographs with the CD showing the A and B schedule properties were marked as A19 series and A20 series. Photographs and CD showing the violations made in the construction in A and B schedule properties were marked as A19 series and A20 series. The photographs with CD showing the name board Universal Coating Company in A-schedule property were marked as Ex.A23 series. The respondent/defendant did not let any oral evidence. Documents were also not marked.
The Trial:-
30.This Court had directed simultaneous trial to be conducted in C.S.No.733 of 2008 and T.O.S.No.3 of 2009. Consequently, evidence was recorded in both the civil suit and in the testamentary and original suit and documents also marked. Simultaneously, evidence was also recorded in A.No.4088 of 2012 and documents marked. Since, the parties are the same and since properties involved were also the same, common Judgment is delivered in C.S.No.733 of 2008, T.O.S.No.3 of 2009 and in A.No.4088 of 2012 in C.S.No.733 of 2008. It is to be mentioned that C.S.No.733 of 2008 had been filed for partition and separate possession and with respect to one of the properties namely A-schedule property, T.O.S.No.3 of 2009 had been filed for grant of letters of administration. Since, the relationship among the parties are admitted, the pleadings and evidence recording in T.O.S.No.3 of 2009 is taken up for consideration first. If the Will projected in T.O.S.No.3 of 2009 is upheld then letters of the administration will be granted and the relief of partition cannot be granted in C.S.No.733 of 2008. However, if T.O.S.No.3 of 2009 is dismissed then automatically partition of the schedule mentioned properties on C.S.No.733 of 2008 will be granted to the plaintiff therein. The consideration in A.No.4088 of 2012 would be slightly different since that would depend on whether the respondents/defendants had committed the violation of order of this Court in O.A.No.855 of 2008.
T.O.S.No.3 of 2009:-
31.Heard arguments advanced by Mr.Ashok Viswanath learned counsel for the plaintiff and Mr.T.D.K.Govindarajan learned counsel for the defendant.
32.The plaintiff had originally filed O.P.No.693 of 2008 seeking letters of administration with respect to the first property mentioned in the Will dated 15.03.1995 which was said to have been executed by K.Saroja Bai. As a matter of fact, in the said Will, the said K.Saroja Bai had bequeathed three properties to three different individuals. She had bequeathed property in No.3, Shanmuga Mudali Street, Royapettah, Chennai, to the plaintiff P.Archana who was the daughter of M.K.Mala, the daughter of K.Saroja Bai. K.Saroja Bai had bequeathed the first floor apartment/flat bearing Door No.16/02, College Road, Nungambakkam, Chennai, to K.Manoj, the son of her another daughter M.K.Kala. She had bequeathed the property at the land and terraced building bearing door No.3, H.Siddiah Road, 5th Cross, Bangalore, to her son M.K.Giri. She had completely disinherited her another son M.K.Ravi, the defendant.
33.The plaintiff P.Archana had attained the age of majority on 31.08.2004. She filed O.P.No.693 of 2008 on 15.10.2008, nearly 13 years after the death of K.Saroja Bai and nearly 4 years after attaining the age of majority. It is the specific case of the defendant in the written statement that the delay had not been explained and that the original petition had been filed, only because he had instituted C.S.No.733 of 2008 which had been filed for seeking partition and separate possession of < share in all the three properties mentioned in the Will.
34.It was also stated in the written statement that the original petition had been filed only after an agreement of sale had been entered into by the plaintiff over the schedule mentioned property. The above being the facts of the case, the issues framed for consideration will have to be examined.
Issue nos.1,2,3:-
35.The first issue revolves around determining whether K.Saroja Bai executed the Will on 15.03.1995 in a sound and disposing state of mind and in the presence of two or more attesting witnesses and whether the Will is a true and genuine document. The second issue is whether the Will dated 15.03.1995 was the last Will of K.Saroja Bai. The Third issue was whether the plaintiff was entitled for grant of letters of administration. Since the evidence on all the three issues are interlinked, they are taken up together. In the petition seeking letters of administration, the petitioner P.Archana had impleaded the five respondents. The first respondent, M.K.Giri, who was the beneficiary of one of the property at No.3, H.Siddiah Road, 5th Cross, Bangalore. The second respondent was the mother of the petitioner. The third respondent was M.K.Kala her mother's sister. The fourth respondent was K.Manoj, who was the beneficiary of another property being the first floor apartment/flat bearing Door No.16/02, College Road, Nungambakkam, Chennai. He was also the son of the third respondent M.K.Kala. The fifth respondent M.K.Ravi was the other son of K.Saroja Bai who had been completely disinherited in the will dated 15.03.1995.
36.In the petition, the plaintiff had not given any reason as to why the first respondent M.K.Giri and the fourth respondent K.Manoj had not joined with her in presenting the petition seeking letters of administration with respect to all the three properties mentioned in the Will.
37.In the petition, the reason for not filing the affidavit of the attesting witnesses, had been given as follows:-
The petitioner understands that Mr.P.Subba Rao, the 1st of the two attesting witnesses to the last Will dated 15.03.1995 of the deceased Testatrix Smt.K.Saroja Bai, has since died. The petitioner does not know the other attesting witness and his present whereabouts. Hence the petitioner is unable to procure and file the affidavit of any of the attesting witnesses.
38.The said averment signifies one very important fact, namely, that the petitioner did not know anything about the second attesting witness. She did not know his name, she did not know his whereabouts. She not able to 'procure' his affidavit. The first attesting witness P.Subbarao is said to have died.
39.Section 63 of the Indian Succession Act is as follows:-
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 and by 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 witness, 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.
40.Section 68 of the Indian Evidence Act is as follows:-
Proof of execution of document required by law to be attested:- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
(provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.)
41.Section 69 of the Indian Evidence Act is as follows:
''Proof Where no attesting witness found:- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.''
42.Reference may also be made to the Original Side Rules. Order 25 rule 9 of the Original Side Rules, is as follows:-
In any case where probate or letters of administration is for first time applied for after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the petition.
43. In the instant case, in the petition, the plaintiff had not given any reason at all for the delay of nearly 13 years in filing the application for letters of administration. As a matter of fact till this date nearly 23 years from the date of execution of the Will, the first and fourth respondents in the original petition have not filed any application seeking grant of letters of administration with respect to the Will dated 15.03.1995 of K. Saroja Bai under which they were also legatees and beneficiaries of two other properties.
44.This issue raises a very serious question regarding the genuineness or acceptability of the Will dated 15.03.1995. It is stated that the said Will is a registered Will. However, registration by itself cannot be sufficient proof of execution of the will in a free state of mind. The examination of the attesting witnesses is mandatory. In the present case, in the petition, the plaintiff had clearly stated that one of the attesting witness P.Subbarao is dead and that she does not know anything about the second attesting witness. The witness had also not been named in the petition. To reiterate the reason why the first and fourth defendants did not join in the proceedings seeking letters of administration had also not been explained. The delay in filing the petition seeking letters of administration had also been not explained.
45.On the other hand in the written statement filed by the defendant, it had been stated that there was a partition of the properties among K.Saroja Bai and her two daughters and sons. That partition was also a registered deed, registered as document No.67/1995 on the file of Sub-Registrar, Triplicane. It was dated 02.12.1994. By that partition, which document had been marked as Ex.P12. K.Saroja Bai was allotted the property mentioned in the schedule of the original petition.
46.During trial, the plaintiff examined as PW-1 A.Kathirvelu. There is no explanation given during evidence as to why he did not file any affidavit as required under Order 25 Rule 5 of the Original Side Rules. The plaintiff at the time of filing the original petition had very clearly stated that she did not know the details of this attesting witness. The first attesting witness, P.Subba Rao was said to have died. That being the case some explanation is required as to how and in what manner PW-1 was located and identified as the other attesting witness. The only evidence available in this regard is as follows:-
I have not received any summons form this Court to give evidence. The counsel for the plaintiff asked me to come and give evidence. I was residing at the address given in my driving license till 2007 middle. Thereafter, I shifted my residence to Thiruvotriyur address which is given in ration card. The counsel had contacted my address as given in the Will at the time when I signed as a witness. On coming to know that I have shifted my residence to Thiruvotriyur address, he then contacted me to the present address. The above evidence extracted in cross examination. In chief examination, the witness did not comeforth voluntarily to give details and explanation about his disappearance and sudden appearance. He stated routinely the necessary evidence required by a witness who is said to have attested any Will. It is unbelievable that he should remember every detail about an event which happened more than fifteen years back. He, however, gave very vague answers during cross examination.
47.In the opening day of cross examination, the witness stated as follows:-
I am not employed at present. I was employed as a typist in the Saibaba Temple at Mylapore. Since I am not employed at present, I have not filed any proof to show that I was previously employed as typist in the Saibaba Temple at Mylapore nor said so in my proof affidavit.
48.Even though, the identity of the witness is not in question, still the genuinity of statements made under oath will have to be very carefully examined. This is also because of the extremely long delay in filing the petition seeking grant of letters of administration and also the fact that in the petition it was stated that details of the present witness was not known to the plaintiff.
49.In further cross examination, the witness began to develop reasons why he was chosen to be the attesting witness. He stated as follows in cross examination:
Mr.Subbarao,advocate had introduced Mrs.Sarojabai to me as his client. I was attending to the personal works of the advocate Mr.Subbarao like going to the bank, handling over case bundles to his juniors and attending to the household work like purchase of groceries, etc., I deny the suggestion that I am giving contradictory versions in that I said that I was working in the Saibaba Temple as a typist and now I say that I am attending to the works given by the advoate Mr. Subbarao and so I am not coming out with truth.
50.He further stated during cross examination as follows:-
I have not seen Mrs.Sarojabai signing any document before the date of the Will.
51.With respect to the sound and disposing state of mind memory and understanding of K.Saroja Bai the witness stated as follows:-
I have seen her at the office of the Sub-Registrar and at that time, I found that she was of sound and disposing state of mind.
52.The answers given are mechanical in nature. It are the answers of witness who has been tutored. It must be kept in mind that he had disappeared and the plaintiff stated very clearly that she did not know who the attesting witness was. She did not file her affidavit along with the original petition. He had given the evidence in March 2011 nearly 16 years after the execution of the Will. The witness who had lost all the contact with the legatees the testatrix cannot be expected to give clear reasons. That is natural. But it is also unnatural, if such a witness gives clear mechanical answers during chief examination, but flounders during cross examination only. If it is clear from reading the evidence of the deposition of the witness that he deposed as if he had been taught what to say. He did not depose from his memory. The bona fide nature of the deposition is highly suspect.
53. He further stated in cross examination as follows:-
I have not stated in my proof affidavit that the contents of the will was read out by Mr.Subbarao, advocate to Mrs. Sarojabai.
54. Under further cross examination, the witness began to give contrary answers. He first stated that instructions were given by K.Saroja Bai to Mr.Subbarao, advocate, to prepare the Will. He later admitted that Mr.Guru Ramamchandran, advocate had actually drafted the Will. He finally admitted as follows:-
I do not know who drafted the Will and when and where it was drafted.
55. He also admitted as follows:-
I have not filed any proof to show that I was working in Mr.Subbarao, advocate's office. I deny the suggestion that since I had not produced any proof to show that I was working in Saibaba Temple at Mylapore and also in the office of Mr.Subbarao, advocate, my evidence that I was working in Saibaba Temple at Mylapore and also in the office of Mr.Subbarao, advocate, is false.
56.The cross examination read in entirety creates clear doubt over the truthfulness of his deposition. It is true that he had produced his driving license and family card in the name of A.Kathirvelu, but still his disappearance and sudden reappearance for examination for deposing as a witness creates strong suspicion over the bona fide of the witness.
57.He further admitted as follows:-
There is no seal of the Sub-Registrar at page 3 to show that Mrs.Sarojabai had made the correction in the presence of the Sub-Registrar. There is no stamp affixed to show that testatrix had signed in the presence of the Sub-Registrar. There is also no stamp affixed by the office of the Sub-Registrar to show that the witnesses also signed in the presence of the Sub-Registrar.
58.In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [(2006) 13 SCC 433 : (2006) 14 Scale 186], the Honourable Supreme Court has held as follows:
32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated.....
59. The plaintiff P.Archana was examined only as PW-3. She was examined after her father R.Prabhakar Rao Pawar was examined as PW-2. It is not known why PW2 was examined. The manner in which the plaintiff sought to prove the Will by examining herself after examining the other witnesses forces the Court to draw a conclusion that the plaintiff had deliberately withheld herself from being exposed during cross examination. In the first instance she was examined after other witnesses. PW-2 was not directly involved either in the execution of Will or in the attestation of Will. But he was directly interested in seeing that letters of administration and granted to his daughter.
60. I hold that manner in which the trial was conducted on behalf of the plaintiff creates a strong suspicion that the plaintiff has not come to Court with clean hands. They has not given any explanation for not filing the petition for nearly 13 years. Even if it is to be said that the plaintiff was a minor, still she has not given any explanation for not filing the petition for 4 years after she attaining the age majority.
61.The fact that the petition was filed only after the defendant was instituted C.S.No.733 of 2008 seeking partition and separate possession of the properties is also significant. Moreover as pointed out the other beneficiaries of the Will were shown as respondents and all the properties mentioned under the Will were not shown in the schedule to the petition. The entire evidence of PW-1 does not inspire confidence. The strange methodology adopted to examine PW-2 before propounder of the will leads the Court to suspect that the plaintiff had apprehension over the genuinity of the will and establishing proof of the same.
62. PW-3, P.Archana, the plaintiff for the very first question in the cross examination stated as follows:-
I am aware of the contents of the Will, but I have to see the Will to remember the same.
It is clear that she seeks to prove as will, the contention of which she is not sure of.
63. With respect to the delay in filing the petition, during cross examination she came up with a very strange reason. She stated that the original will was handed over by the defendant in the year 2007 in Bangalore. This cannot be probable since the defendant is challenging the execution of Will. What is required in a Court of law is not honesty. She cannot shift the blame. She had not taken any steps atleast from 2004 to propound the will. She had not stated that she was not aware of the will, or that knowledge of the same came to her only in 2007.
64. She stated as follows in cross examination with respect to the delay in filing the petition. It must be pointed out that the very next question she admitted that she had not given that explanation in that petition seeking grant of letters of administration.
My Uncle, the defendant herein, came to my house at Bangalore in June 2007 and handed over the original Will and other documents relating to the suit property. In the petition I have not stated that my uncle, the defendant herein, handed over the original Will in my house in Bangalore in June 2007.
65.With respect to her knowledge regarding PW-1 A.Kathirvelu during cross examination she stated as follows:-
I was sitting in the car, my father and my advocate on record went to the house of witness A.Kathirvelu, and when he came out I saw him. I do not remember the address of Mr.A.Kathirvelu. I do not know the address of advocate Mr.K.Subba Rao.
This fact that PW1, Kathirvelu was located by her father, was not spoken to either by PW-1 or by the father, PW-2
66.She again contradicted herself with respect to the handing over of the Will by the defendant and with respect to her knowledge that the defendant was in custody of the original Will. She stated as follows:-
There is no mention in the Will about the custody of the same with defendant or anybody else. Since my uncle, the defendant herein, and his wife came to my house at Bangalore and handed over the Will, I came to know that the custody of the Will was with the defendant. Before my uncle handed over the Will, I had knowledge about the same. My parents told me about the Will. I had not verified with my parents as to how they had knowledge about the custody of the Will with the defendant herein.
67.PW3, however, again did not come with honest answers when further cross examined.
Q: You said that your parents had knowledge about the custody of the Will with defendant herein. Did you or your parents take any steps to demand the defendant to hand over the Will to you?
A: I did not say that my parents had knowledge about the custody of the Will with the defendant. When my uncle handed over the Will to me, I came to know that the Will was in the custody of the defendant.
68. She further admitted as follows:-
In the petition I have not said that when my uncle handed over the Will to me. I came to know that the Will was in the custody of the defendant. In the petition, I have not stated that the Will was handed over to me in June 2007.
The above evidence is self contradictory and are the words spoken by a person, who seeks to cover up vital information and who refuses to give proper disclosure of true facts to the Court.
69. With respect to the signature of the testatrix she stated as follows:-
Q: Since you said that you had no occasion to see the signature of your grandmother, how do you say that this Ex.P8 Will was executed by your grandmother?
A: Since my uncle handed over the Will, I believed that it was executed by my grandmother.
The above answer throws up more question than answers regarding the genunity of the execution of the will. It must be kept in mind that for reasons best known to them, the other legatees have not come forward till this date to prove the will or claim the properties bequeathed to them.
70.She also admitted as follows:-
I have not stated in the petition that since my uncle handed over the Will to me, I believed that it was executed by my grandmother. I have not produced any document before this Court to prove that the Will was handed over to me by the defendant herein.
The will is a very important document. It has bequeathed properties. It has disinherited normal succession to properties. The lackadaisical manner adopted leads the cost to conclude that the propounder herself was not sure of the genuinity of the will.
71.In the written statement it was specifically stated that the testatrix did not know English and that there was no clause in the Will that the document was read over and explained to her. The burden was on the plaintiff who propounded the Will to prove execution, to prove that the testatrix signed the Will with knowledge about its contents. However, PW-3 who is the propounder of the Will stated as follows when questioned whether the testatrix knew to read and write English.
I have not produced any document before the Court to prove that my grandmother was able to read and write English. I have also not produced any document before this Court to show the educational qualification of my grandmother.
This disclosure is very vital and read in conjunction with the averment in the written statement and evidence of DW-1 that the testatrix did not know English, leads to the irrefutable conclusion that the testatrix did not know the contents of the will. It must also be pointed out that PW-1 had also given self-contradictory answers as to who prepared the will and whether it was done under the instruction of the testatrix.
72. A careful reading of the evidence shows that the plaintiff, had left more questions unanswered. She had not proved the Will in manner known to the law. The witness who spoke about the attestation cannot be trusted since even according to the plaintiff she did not know who the attesting witness was. However, a witness was produced in Court. He deposed as if the entire incidents happened just the previous day, though he was deposing 16 years after the date of execution the Will. He naturally floundered in cross examination. The witness is not trust worthy. He contradicted himself with respect to his past employment as to preparation of the Will and why he was chosen to perform a very sacrosanct duty of attesting a Will. It is also not known when and how he surfaced. He was not called upon by the plaintiff to file an affidavit in accordance with the requirement under Order 25 Rule 5 of the Original Side Rules, but surfaced to gave evidence. The propounder was examined after PW-2, her father let in evidence. She did not given convincing answers and explanation regarding delay, regarding obtaining possession of original will, regarding the appearance of PW-2 and more importantly on the issue whether the testatrix knew English and know the contents of the Will.
73. In the present case the plaintiff had come to Court with a Will said to have been executed by K.Saroja Bai. She initially stated that she did not know anything about the attesting witness. She did not give any convincing reason for the delay in filing the petition. She did not give any convincing reason why the other legatees did not join in the the petition seeking letters of administration. She did not give any reason for not including the other properties mentioned in the Will.
74.The entire proceedings appear to be a doctored proceedings. In view of the same I am unable to convince myself to pass an order granting letters of administration to the plaintiff.
75.For all the reasons stated above, the issues framed for consideration are answered against the plaintiff. I hold that the plaintiff had not proved the execution of the Will. Mere examination of PW-1 would not suffice. The sound and disposing state of mind particularly within 5 months from the date of her husband has not been established to the satisfaction of the costs. There is a cloud of suspicion over the entire execution of the Will. The attestation has not been proved to the satisfaction of the Court. The evidence of PW-1 is not convincing. The propounder of the Will had been examined after other witnesses have already cross examined. Her evidence is untrustworthy. She had not chosen to given evidence in the first place to prove the will. She disclaimed knowledge of the will, but claimed right under the will. She did not satisfy the mind of the Court with respect to the fact whether the testatrix knew to read and write in English. She had not proved the Will in manner known to the law. She did not know anything about PW-1, the attesting witness produced before this Court. She had not given any reason for the delay in filing the petition.
76.The defendant has alleged that the plaintiff had entered into a commercial agreement with the suit schedule property. I hold that she had come to Court seeking letters of administration more as a formality than out of genuine reasons. The entire petition does not inspire confidence. There is a ring of falsehood surrounding the contents of the petition and the evidence let in supporting the averments in the petition.
77.The first issue is answered that it has not been proved that K.Saroja Bai was in a sound and disposing state of mind at the time when she was said to have executed the Will dated 15.03.1995 and the Will had not been proved in a manner known to law. When the issue no.1 is answered, thus, the issue no.2 becomes redundant, since no alternate will had been produced.
78. I hold with respect to issue no.3, that the plaintiff is not entitled for grant of letters of administration as prayed for in T.O.S.No.3 of 2009.
79. In the result T.O.S.No.3 of 2009 is dismissed with costs.
C.S.No.733 of 2008:-
80.This suit had been filed seeking partition and separate possession of undivided 1/4th share in the schedule mentioned properties. The plaintiff and defendants are brothers and sisters. The properties are said to have been allotted to their mother K.Saroja Bai, by partition deed Ex-P3. The Testamentary and Original Suit filed seeking letters of administration of a will said to have been executed by K.Saroja Bai had been discussed by this Court. It naturally follows that the properties then devolve on to the legal heirs in equal proportions. The fact that K. Saroja Bai was the owner of the schedule mentioned properties. It has been established by Ex.P3, the partition deed. By the partition deed she was allotted the suit schedule properties. The relationship among the parties had not been denied or challenged by the defendants. The Will projected by the defendants had been rejected by this Court.
81.The plaintiff examined himself as PW-1. The partition deed was marked as Ex-P3. By the said deed, the defendants were also allotted properties. They did not challenge the partition deed. They did not examine themselves as witness. They did not voluntarily come forward to subject themselves for cross examination. The evidence of DW-1 is no relevance. She had no direct knowledge about the fact, she deposed.
82. Consequently, I hold that the plaintiff is entitled for partition and separate possession of 1/4 undivided share in the suit properties. The issues framed for consideration answered are as follows:
1.The first issue was whether K.Saroja Bai is the mother of the plaintiff, and it is answered in the affirmative.
2.The second issue was whether K.Saroja Bai died intestate. Since the Will projected by P.Archana her grand daughter had been rejected by this Court, it is held that K. Saroja Bai died intestate.
3.The third issue was whether the partition pleaded by the parties is true and binding. The properties which are available for partition had been allotted to K.Saroja Bai by means of a registered partition deed dated 02.12.1994 and I hold that the said partition deed is binding on the parties.
4.The fifth issue was with respect to the Will dated 15.03.1995. The detailed discussion in T.O.S.No.3 of 2009 has determined that the Will is not genuine. Consequently, it had been held that the Will had not been proved in manner known to law and that it was executed in a sound and disposing state of mind by the testatrix. TOS No.3 of 2009 had been dismissed with costs.
5.The sixth issue is related to non-joinder of necessary parties this issue is answered against the defendants. As a matter of fact in the written statement they have not mentioned the names of the legatees to the Will. The Will itself has been rejected by this Court.
6.The seventh issue is with respect to rendition of accounts and I hold that the plaintiff is entitled for this relief, since there had been an allegation that the 1st and 2nd items of suit properties have been exploited to the commercial advantage of the defendants.
7.The Eight issue is whether the value made by the plaintiff is correct. I hold that issue of suit valuation court fees will have to be decided at the time of the final decree proceedings, I hold this issue in favour of the plaintiff is to be answered at the time of final decree proceedings under Order 20 Rule 12 CPC.
8.The ninth issue is whether the defendant is entitled for exemplary costs and I answered this against the defendant, since I hold that the plaintiff is entitled for partition and separate possession of 1/4 undivided share in the suit properties. In the result, suit decreed as prayed for with costs. The parties are at liberty to apply for final decree by filing application under Order 20 Rule 12 CPC.
A.No.4088 of 2012 in O.S.No.855 of 2008 in C.S.No.733 of 2008:-
83. This application had been filed under Order 39 Rule 2A of C.P.C., to punish the second and third respondents/ defendants for willful disobedience of an order of the injunction granted in O.A.No.855 of 2008. The appellant / plaintiff was examined as PW-1. He had produced photographs to show the alterations made in the 1st and 2nd items of the suit properties inspite of the injunction order granted by this Court. The second and third respondents / defendants have deliberately changed the nature and physical feature of the buildings for their own advantage, even though there was a specific order of injunction against them. They have not come forward to explain the documents produced by the plaintiff. They have not come to Court to explain the circumstances surrounding which they have changed the physical features particularly of the A-Schedule property by the second defendant.
84.The order in O.A.No.855 of 2008 was passed to the knowledge of the second and third respondents / defendants. They cannot claim to have no knowledge of the order. It is part of the Court records. They cannot plead innocents and ignorance. When a Court passes a judicial order, the parties should respect it. To a specific question regarding the act of disobedience, PW-1 answered as follows:-
Q: In A.No.4088/2012, you have complained that 2nd respondent M.K.Mala had committed disobedience of the orders passed by the High Court on 25.08.2010 in O.A.No.855 of 2008 in C.S.No.733 of 2008. What is the act of disobedience committed by the second respondent M.K.Mala as complained by you in the said application.
A: The user of the building namely residential is now converted as non-residential namely a factor is being run there. Some alterations have been carried out in the building and they have put up an extra floor in the building.
85. With respect to A13 the complaint given by the residents of Shanmuga Mudali Street, he answered as follows:-
''Q: I put it to you that Ex.A13 is not the complaint by the residents of Shanmuga Mudali Street, Royapettah, but it is the document created by you and filed before court to mislead the court.
A: I deny the suggestion. Two other residents have also signed in Ex.A13 with their residential address.
Q: As against whom you have given the complaint Ex.A13?
A: As against the activities at No.3, Shanmuga Mudali Street, Royapettah, Chennai-14, the residents had given the complaint Ex.A13''.
86. He further stated as follows in cross examination:
Q: Have you filed any document in A.No.4088 of 2012 to prove your allegation that your sister M.K.Mala has converted the suit A schedule property into a commercial building by putting up additional floor.
A: I have filed photographs and marked the same.
The evidence is very clear. The second defendant had converted A-Schedule property of the plaint into a commercial complex.
87.With respect to B-Schedule property, he replied as follows:-
The B-schedule property in A.No.4088 of 2012 is at College Road, Nungambakkam, Chennai-34. The B-schedule property in A.No.4088 of 2012 and the plaint B-schedule property in C.S.No.733 of 2008 is one and the same. Now the State Bank of India is the tenant of B-schedule property. I do not know from when onwards the State Bank of India is a tenant of B-schedule property.
88. He also stated as follows:-
Q: What is the act of disobedience which according to you your sister M.K.Kala, the third respondent, has committed in disobedience to the orders of injunction granted by Hon'ble Court.
A: In the hall, they have constructed a room with bricks for the Manager and also put up cabin, and M.K.Kala was receiving a rent of Rs.1,40,000/-, which was revealed by the Manager himself.
89. He was further cross examined and his answers were as follows:-
Q: Does the order of the Hon'ble High Court dated 25.08.2010 in O.A.No.855 of 2008 in C.S.No.733 of 2008 marked as Ex.A6 in A.No.4088 of 2012 prohibit any person from receiving additional rent from the suit schedule properties.
A: It does not prohibit. But the order prohibits the respondents/defendants from in any way dealing with my 1/4th share in the plaint schedule properties either by mortgage, lease, sale, etc., or by altering the structure of the building either through joint venture or otherwise.
90. Order 39 of Rule 2(A) of the Code of Civil Procedure is as follows:-
Consequence of disobedience or breach of injunction:-
1. In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Courts directs his release.
2. No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.
91. The evidence of PW-1 was also supported by PW-2, Asha Ravi, who was one of the applicants. The evidence of PW-1 very clearly establishes the disturbing fact that the second and third respondents/defendants have violated the orders of this Court. They have, without any care or respect for the order of the Court, continued to alter the physical features of the A and B schedule properties, even though there was specific order of injunction granted by this Court. They have not let in any oral evidence to rebut the allegations. They have no respect for judicial proceedings. In view of the above evidence, I hold that orders have to be passed against them for deliberate and willful disobedience of the order of this Court.
92. The application is allowed with costs and I hold that the 1/4th shares allotted to the second and third respondents / defendants, M.K.Mala and M.K.Kala have to be attached for a period of 1 year. If the disobedience continues, the applicant shall have liberty to apply to the Court to bring their shares for sale by public auction.
93.The Registry is directed to address the concerned Sub-Registrar Offices were the A and B schedule properties are situated that the < undivided share in 'A' and 'B' schedule properties which falls to the names of M.K.Mala, M.K.Kala, the second and third defendants in C.S.No.733 of 2008 shall be attached for a period of 1 year.
94. In the result,
a)TOS No.3 of 2009 is dismissed with costs.
b)C.S.No.733 of 2008 is decreed with costs. The plaintiff is entitled to 1/4 share in the suit properties. The parties are permitted to apply for final decree under Order 20 Rule 12 CPC and in accordance with rules.
c)A.No.4088 of 2012 in O.A.No.855 of 2008 in C.S.No.733 of 2008 is allowed with costs and it is held that that 1/4 undivided share of M.K.Mala and M.K.Kala in 'A' and 'B' schedule properties shall be attached for a period of one year. If the disobedience continues, then the applicant is at liberty to bring the attached portion for sale by public auction.
95.Registry is directed to intimate the concerned Sub-Registrar Offices, where the 'A' and 'B' schedule mentioned properties are situated, regarding the order of attachment passed by this Court.
14.09.2018 Index :Yes/No Internet :Yes/No smv Note:Issue order / judgment copy on 20.09.2018 List of Witnesses in C.S.No.733 of 2008:
P.W.1 (M.K.Ravi) P.W.2 (Kasthuri Bai) P.W.3 (K.Somurao) D.W.1 (Revathi) List of Exhibits:
1.Ex.P1 The certified copy of the sale deed (Doc.No.1148/1962 executed by Kamala Veeraraghavan in favour of C.H.Kesava Rao and another, dated 11.07.1962
2.Ex.P2 The certified copy of the partition deed (Doc.No.764 /1988) entered into between Mrs.Umakumar and 4 others and Prema Subramaniam & 5 others, dated 07.10.1988.
3.Ex.P3 The certified copy of the partition deed (Doc.No.67/1995) executed between Mrs. Saroja Bai and M.K.Giri, dated 02.12.1994
4.Ex.P4 The copy of the death certificate of my father C.H.Kesava Rao, who died on 01.10.1994, the original of which is filed and marked TOS.No.3 of 2009.
5.Ex.P5 The photocopy of the legal heirship certificate of Mr.C.H.Kesava rao issued by the Tahsildar, Mylapore-Triplicane Taluk, Madras, dated 24.10.1994.
6.Ex.P6 The photocopy of the death certificate of Mrs.K.Saroja Bai, who died on 02.06.1999, dated 16.07.1999.
7.Ex-P7A - Copy of Indian Bank Savings Account Pass Book of P.W.3.
8.Ex.P7 The photocopy of sworned affidavit given by M.K.Mala, the 2nd defendant, dated 15.09.1999.
9.Ex.P8 The photocopy of the letter written by M.K.Mala to the General Manager, dated 16.09.1999.
1.Ex.D1 The certified copy of the sale deed (Doc.No.5273 of 1986) executed by Tamil Nadu Small Industries Development Corporation, dated 10.09.1986
2.Ex.D2 The certificate of Incorporation of Company No.5554 of 1967 M/s.Automobile Rubber Products Private Limited issued by Assistant Registrar of Companies.
3.Ex.D3 - The certificate copies of the Memorandum of (Series) Association and Articles of Association of M/s.Automobile Rubber Products Private Limited issued by the Registrar of Companies.
4.Ex.D4 The certified copy of Form No.18, notice of change of situation of Registered office of M/s.Automobile Rubber Products Private Limited given to the Registrar of Companies.
5.Ex.D5 The certified copies of the Proof affidavit of A.Kathirvelu(PW1), P.Archana(PW3) and my proof affidavit and additional proof affidavit(DW1) filed TOS.No.3 of 2009.
6.Ex.D6 The transcript of evidence of A.Kathirvelu(PW1), (Series) R.Prabakar Rao Pawar (PW2),P.Archana(PW3) and myself (DW1) in TOS.No.3 of 2009.
7.Ex.D7 The signature of M.K.Ravi(PW1) found in all pages (Series) of the photocopy of the partition deed appended to Ex.P3, dated 02.12.1994.
8.Ex.D8 The original sworn affidavit of M.K.Ravi, dated 15.09.1999.
9.Ex.D9 The letter of undertaking given by M.K.Ravi, dated 16.09.1999.
List of Witnesses in T.O.S.No.3 of 2009:
P.W.1 (A.Kadirvelu) P.W.2 (R.Prabhakar Rao Pawar) P.W.3 (P.Archana) D.W.1 (M.K.Ravi) D.W.2 (Kasthuri Bai) List of Exhibits:
1.Ex.P1 The xerox copy of my driving license valid upto 19.12.2012.
2.Ex.P2 The xerox copy of the family card 2005-2009 issued in my name.
3.Ex.P3 The xerox copy of the identity card issued to me by the Election Commission of India.
4.Ex.P4 The death certificate of K.Sarojabai, who dies on 02.06.1999, issued by the Health Officer, Corporation of Chennai.
5.Ex.P5 The death certificate of Mr.C.H.Keshav Rao, who died on 01.10.1994, issued by the Health Officer, Corporation of Chennai.
6.Ex.P6 The certificate of birth of my daughter Archana, who was born on 31.08.1986, issued by the Health Officer, Corporation of Chennai.
7.Ex.P7 The death certificate of Mr.Subbarao, who died on 14.05.2001, issued by the Health Officer, Corporation of Chennai.
8.Ex.P8 The original Will executed by K.Saroja Bai, which is now sought, to be probated in this TOS.
9.Ex.P9 The notice given by my advocate to the advocate appearing for the defendant calling upon him to produce two documents mentioned therein.
10.Ex.P10 The reply notice issued by counsel for the defendant and addressed to my advocate in reply to the notice to produce EX.P9.
11.Ex.P11 The ING Vysya Bank, Mylapore Branch, has produced statement of deposit accounts and as well as personal customer record containing the specimen signature of Saroja Bai with covering letter.
12.Ex-P12 The registration copy of the partition deed registered as document no.67/1995 presented and registered before the Sub-Registrar, Triplicane.
13.Ex.P13 The certified copy of the plaint as originally filed by me with the clean copy in C.S.No.733 of 2008, High Court, Madras, which is referred to by me in para 2 of my written statement filed in TOS.No.3 of 2009
14.Ex.P14 The certified copy of the annual return of M/s.Paramount Electroplaters Private Limited made upto 30.09.1989.
15.Ex-P15 The system generated copy From DIN-3 it contains at page 4 his digital signature.
16.Ex-P16 - Copy of Indian Bank Savings Account Pass Book of K.Somurao
1.Ex.D1 The certified copy of the sale deed (Doc.No.140 of 1984) executed by M.Simon Jacob in favour of Mrs.M.K.Kala, dated 23.01.1984.
2.Ex.D2 The certified copy of the sale deed (Doc.No.1812 of 1986) executed by Mr.Marasagayan in favour of Mrs.M.K.Mala, dated 04.06.1986.
3.Ex.D3 The certified copy of the sale deed (Doc.No.313 of 1990) executed by Mr.N.Venkatesan in favour of Mrs.M.K.Kala, dated 22.01.1990.
4.Ex.D4 The certified copy of the release deed (Doc.No.205 of 1995-1996) executed by K.Saroja Bai in favour of M.K.Mala, dated 15.04.1995.
5.Ex.D5 The certified copy of the sale deed (Doc.No.3990 of 1995-1996) executed by Mr.P.Jayavelu in favour of Mrs.M.K.Mala, dated 22.02.1996.
6.Ex.D6 The certified copy of the Annual return of Company having a share capital in Part II Form of filed by Paramount Electroplates Private Limited.
1.Ex.C1 The caveat petition entered by me in O.P.No.693 of 2008 (TOS.No.3 of 2009)
2.Ex.C2 The affidavit filed along with caveat petition entered by me in O.P.No.693 of 2008.
3.Ex.C3 the signature found in the vakalat filed by my counsel, dated 21.11.2008.
Prayer in A.No.4088 of 2012 in O.A.No.855 of 2008 in C.S.No.733 of 2008:
P.W.1 (M.K.Ravi) P.W.2 (Asha Ravi) List of Exhibits:
1.Ex.A1 The certified copy of the certificate of incorporation of Buysell Interaction Private Limited issued by the Assistant Registrar of Companies, Tamil Nadu, dated 06.05.2003
2.Ex.A2 The photocopy of plaintiff affidavit filed in O.A.No.855 of 2008 in C.S.No.733 of 2008 for grant of injunction.
3.Ex.A3 The photocopy of the Hon'ble Judges summons in O.A.No.855 of 2008 in C.S.No.733 of 2008.
4.Ex.A4 The photocopy of the counter affidavit filed by the 2nd respondent/2nd defendant in O.A.No.855 of 2008 in C.S.No.733 of 2008.
5.Ex.A5 The photocopy of the counter affidavit filed by the 3rd respondent/3rd defendant in O.A.No.855 of 2008 in C.S.No.733 of 2008.
6.Ex.A6 The certified copy of the order in O.A.No.855 of 2008 in C.S.No.733 of 2008, dated 25.08.2010.
7.Ex.A7 The certified copy of Form-23 Assembly Constituency of Buysell Interactions Private Limited, dated 31.03.2011.
8.Ex.A8 The certified copy of the Annual Report 2010-2011 of Buysell interactions Private Limited.
9.Ex.A9 The certified copy of the notice to sharesholders of Buysell Interactions Private Limited, dated 01.09.2011.
10.Ex.A10 The certified copy of the auditor's report of Buysell Interactions Private Limited.
11.Ex.A11 The certified copy of balance sheet of Buysell Interactions Private Limited as on 31.03.2011.
12.Ex-A12 The photocopy of the catalogue of Buysell Interactions Private Limited showing the manufacturing details of the company.
13.Ex.A13 The complaint given by the residents of Shanmugamudaliar st, Royapettah, Chennai-14 to the Hon'ble Minister for Environment, Government of Tamil Nadu, Secretariat, Chennai, dated 19.04.2012
14.Ex.A14 The office copy of the notice sent by the applicant through Advocate to M.K.Giri, M.K.Mala and M.K.Kala, dated 24.04.2012.
15.Ex-A15 The returned postal envelope with postal registration slip addressed to M.K.Giri with endorsement ID
16.Ex.A16 The returned postal envelope with postal registration slip addressed to M.K.Kala with endorsement not claimed.
17.Ex-A17 The office copy of the letter sent by the applicant to the Assistant General Manager, State Bank of India, Corporate Office, College Road, Nungambakkam, Chennai-14, dated 28.04.2012.
18.Ex.A18 The reply notice sent by M.K.Mala through her advocate and to addressed to plaintiff advocate, dated 04.05.2012.
19.Ex.A19 The photographs with Cd, showing the plaint 'A' (series) schedule property and also the violation of interim orders passed by this Hon'ble Court in O.A.No.855 of 2008.
20.Ex-A20 The photographs with Cd, showing the plaint 'B' (series) schedule property and also the violation of interim orders passed by this Hon'ble Court in O.A.No.855 of 2008.
21.Ex.A21 The photocopy of the petition given by applicant to the District Registrar, Chennai with the endorsement on the reverse of my petition made by the Joint Registrar chennai Central, dated 24.04.2012.
22.Ex-A22 The letter of the Member of Secretary, Chennai Metropolitan Development Authority, Chennai, dated 20.11.2012.
23.Ex.A23 The photograph with CD showing the name board (series) Universal Coating Company in plaint 'A' schedule property. 24.Ex.A24 The D.O Letter written by the Chennai Metropolitan Development Authority and a copy marked to the applicant, dated 30.11.2012. 25.Ex-A25 The system generated VAT details of Universal Coating Company at Royapettah. 14.09.2018 C.V.KARTHIKEYAN,J., smv C.S.No.733 of 2008 and T.O.S.No.3 of 2009 and A.No.4088 of 2012 in C.S.No.733 of 2008 14.09.2018