Madras High Court
D. Narasimhan vs D. Thirumangai, J. Chandra, R. ... on 12 August, 2002
Equivalent citations: AIR 2003 MADRAS 101
Author: M. Chockalingam
Bench: M. Chockalingam
JUDGMENT M. Chockalingam, J.
1. Tr. C.S. No. 1249/93:
This suit has been filed for division of plaint A, B, C and D Schedule properties and putting the plaintiff in possession of his 1/7th share in such properties and for costs.
2. Tr. C.S. No. 210/00:
This suit has been filed for delivery of possession of the suit property bearing door No.10, Old No.28/28, Selva Vinayagar Koil Street, Old Washermenpet, Madras, for a direction to the defendants 1 to 4 to pay Rs. 2,000/- towards past mesne profits and continue to pay Rs. 400/- per month as future mesne profits to the plaintiffs till delivery of possession, for a direction to the defendants 5 to 11 to pay Rs. 11,880/- representing the past mesne profits and continue to pay Rs. 660/- every month till delivery of possession to the plaintiffs as future mesne profits and for costs.
3. C.S. 267/86:
This suit has been filed for division of the plaint schedule properties by metes and bounds, allotting to the plaintiffs and the fourth defendant Govardhanan 1/3rd share in the properties and putting them in vacant possession of the same and for costs.
4. T.O.S. 6/2000:
This suit has been filed for issue of letters of administration in respect of the Last Will and Testament of M.S. Devaraja Chettiar dated 26.10.1975.
Tr. C.S. No. 1249/93:
5. The plaint averments are as follows:
Under a registered deed of partnership dated 15.7.64 entered into between Andalammal, widow of Gopalakrishnan and M.S. Devaraja Chettiar and his sons D. Deenadayalu, since deceased, the plaintiff, the defendants 1 to 5 and his grand children viz. the defendants 7 to 9, the plaint 'B' Schedule property fell to the share of M.S. Devaraja Chettiar. He died possessed of 'A' Schedule property viz. house, ground and premises bearing door No.20, Selva Vinayagar Koil Street, Old Washermenpet, Madras, 'B' Schedule property at No.41, Narasier Street, Old Washermenpet, Madras, 'C' Schedule property viz. agricultural lands at Red hills and 'D' Schedule landed properties at Azhinjiwakkam Village. He died intestate on 7.12.75. He left behind his 3 sons D. Deenadayalu, the plaintiff, the first defendant and his four daughters, viz. defendants 2 to 5 as his legal heirs. On his demise, his properties came to be inherited by them. Thus, the plaintiff became entitled to 1/7th share in the said properties. The plaintiff's elder brother Deenadayalu, since deceased became entitled to 1/7th share and the 1st defendant became entitled to 1/7th share. The sisters of the plaintiff viz. defendants 2 to 5 are each entitled to 1/7th share. Deenadayalu passed away on 7.2.78 leaving behind the defendants 6 to 11 viz. his widow and children as his legal heirs. After the demise of M.S. Devaraja Chettiar, the said Deenadayalu sold some of the items to the defendants 12 to 16, 17, and 19 to 21. Any such sale will not in any way affect the plaintiff's interest in the said property. So also the agreement of sale entered into between the deceased Deenadayalu and the 18th defendant in respect of 1 acre of land in Thandalkazhani Village will not bind his interest in the said property. The defendants 6 to 11 cannot convey absolute title to the defendants 17 to 21. The plaintiff has decided to have the properties divided and at any rate to have his 1/7th share in all the properties separated and divided. The defendants 12 to 21 are either alienees or have entered into agreement of sale. The possession of one co-owner or co-owners shall be deemed to be possession on behalf of other co-owners. Hence the suit is filed for the said relief.
6. The fourth defendant filed a written statement with the following averments:
She was not a party to the partition deed dated 15.7.64. No property was allotted to her share. She came to know that in the said partition, her father M.S. Devaraja Chettiar was allotted properties referred to in Schedule B-1. At the time of his death, he left behind A to D Schedule properties. He left behind his three sons and four daughters as his heirs. On his death they inherited the properties, and each are entitled to 1/7th share. The late Deenadayalu, husband of the 6th defendant and father of the defendants 7 to 11 sold lands in Naravarikuppam Village to some of the defendants. Such sales are not valid and binding on the 4th defendant and will not affect her right, title or interest in those properties. The agreement between Deenadayalu and the 18th defendant is also not binding on her. The plaintiff has either omitted to include the Survey No.63 and the extent of the lands situate in that survey number in Schedule C to the plaint or included the said survey numbers wrongly in details in the sale deeds referred to in the plaint. The plaintiff should clarify the same. She is not aware of the extent of the lands and survey numbers of the lands referred to in D Schedule to the plaint. She agrees for the division of A to D Schedule properties. The plaintiff is liable to render a true and proper account to her and the other defendants for the collections made by him. She is also entitled to 1/7th share in the collections, less expenses like property taxes etc. She agrees for the suit being decreed as prayed for subject to satisfying her about the points raised above.
7. The fifth defendant filed a written statement with the following averments:
She was not a party to the partition deed dated 15.7.64. No property was allotted to her share. She came to know that in the said partition, her father M.S. Devaraja Chettiar was allotted properties referred to in Schedule B-1. At the time of his death, he left behind A to D Schedule properties. He left behind his three sons and four daughters as his heirs. On his death they inherited the properties, and each are entitled to 1/7th share. The late Deenadayalu, husband of the 6th defendant and father of the defendants 7 to 11 sold lands in Naravarikuppam Village to some of the defendants. Such sales are not valid and binding on the 4th defendant and will not affect her right, title or interest in those properties. The agreement between Deenadayalu and the 18th defendant is also not binding on her. The plaintiff has either omitted to include the Survey No.63 and the extent of the lands situate in that survey number in Schedule C to the plaint or included the said survey numbers wrongly in details in the sale deeds referred to in the plaint. The plaintiff should clarify the same. She is not aware of the extent of the lands and survey numbers of the lands referred to in D Schedule to the plaint. She agrees for the division of A to D Schedule properties. The plaintiff is liable to render a true and proper account to her and the other defendants for the collections made by him. She is also entitled to 1/7th share in the collections, less expenses like property taxes etc. She agrees for the suit being decreed as prayed for subject to satisfying her about the points raised above.
8. In the written statement filed by the 8th defendant, it is alleged as follows:
His grand father died on 7.12.1975, while his father Deenadayalu died on 7.2.78. The plaintiff and the defendants 1 to 5 are the sons and daughters of Devarajalu Chettiar and younger brothers and sisters of Deenadayalu. Defendants 2 to 5 are the daughters of Devarajalu Chettiar and sisters of Deenadayalu. The 7th defendant is the grand son of Devarajalu Chettiar and the eldest son of the deceased Deenadayalu and elder brother of the 8th defendant. The defendant's grandfather's elder brother viz. Gopalakrishna died on 23.7.1950. Andal was his wife. All the properties are only joint family properties with Devarajulu Chettiar as kartha and his sons and grandchildren constituting a Hindu undivided family. A nominal partition deed was executed on 15.7.64. In the said partition Andal was given A Schedule property, while Devarajulu Chettiar was given B Schedule property. That apart, two properties were reserved for being sold and for performing the marriages of Devarajulu Chettiar's daughters Padma and Manivalli the defendants 4 and 5. C Schedule was given to Narasimhan, while D Schedule was given to the first defendant. E Schedule was given to Saraswathi. The partition deed was only as nominal and was never intended to be acted upon. All the properties continued in the name of Devarajulu only. All the persons including Devarajulu Chettiar and the family members were only living and continued to live in the said house. There was no transfer or mutation in the records. At that point of time, an attachment was made on the property at Door No.28/29, Selva Vinayagar Koil Street, Madras. Andal filed a claim petition for raising the attachment, which was negatived by the civil court holding that she had no title to the property or possession. She did not challenge the same. Hence the said order has become final and conclusive. There was also a civil suit in C.S. 38 of 1965 filed by one T. Subbaraya Chettiar. The said suit was initially contested, but was later settled and the amounts due to T. Subbaraya Chettiar was paid by Devarajulu Chetty. Taking note of the fact that the first defendant was given one more property, his father directed him to settle the property in favour of Saraswathi, 3rd defendant, and she in turn mortgaged the same to M.S. Devarajulu Chetty claiming that the allotment of property in favour of the 1st defendant was only nominal. The 3rd defendant would appear to have executed another release deed after the death of Devarajulu Chettiar giving the property back to the 1st defendant. The recital in the document would clearly show that the original allotment in favour of the 3rd defendant was only nominal. Devarajulu Chetty was compelled to execute a settlement deed of the property bearing No.2/26, Telugu Chetty Street, in favour of the 2nd defendant. The said settlement was also nominal, and it was not intended to be acted upon. The settlement by the grandfather is not binding and is not valid or binding as the family was continuing. He had no right to settle the valuable property in Telugu Chetty Street. The 2nd defendant made Andal to execute a Will in favour of the 7th defendant giving her property bearing 28/29 Selva Vinayagar Koil Street, Madras. That will has yet to see the light of the day. The allegation in the partition deed that Deenadayalu was given Rs. 20000/- and released his interest is not true. The partition deed was nominally executed. There was absolutely no justification for allotting E Schedule property to the sons of Deenadayalu. B Schedule properties are the valuable properties, and the value mentioned as Rs. 20000/- are not so. The items covered under B Schedule worth today over Rs. 10 lacs and even at that time worth Rs. 2.50 lacs. D Schedule properties worth Rs. 2.50 lacs. Devarajulu Chettiar was considerably under the influence of the 2nd defendant, and he was asked to execute the will at his instance. There were also other debts and amounts due to Devarajulu Chettiar, and they had not been divided. In OP 263/76 filed by the plaintiff, it was provided that Deenadayalu would get his share after the moneys are collected. The defendant also gave a notice dated 28.6.78 to the plaintiff, 1st defendant and others demanding partition. Hence, a decree may be passed in the terms as stated above.
9. The defendants 12 to 16 filed a common written statement stating that they are alienees, since they have purchased lands from D. Deenadayalu under a registered sale deed for valid consideration; that they have no connection in respect of the plaintiff's interest in the properties against the defendants 1 to 11; that they have no collusion with any party to the suit; and that in all other respects, the suit is vexatious, motivated and liable to be dismissed.
10. The defendants 12 to 16 have filed an additional written statement alleging that though a partition deed was executed on 15.7.64, it was not acted upon in respect of the agricultural lands purported to have been dealt therein; that these lands were in the exclusive possession and enjoyment of Deenadayalu Chetty for over 25 years; that he has perfected his title to the lands by open, hostile, and exclusive possession thereof; that he continued to be in exclusive possession and enjoyment of the land; that the defendants for one part purchased lands from him; and that the suit as against them has to be dismissed with costs.
Tr. C.S. No. 210/2000:
11. The plaint averments are as follows:
The 2nd plaintiff's father Deenadayalu, Andalammal, wife of Gopalakrishna Chettiar, M.S. Devaraja Chettiar, his two sons D. Narasimhan and D. Thirumangai constituted a joint family which owned properties that were enjoyed in common. Deenadayalu having already received his share in the joint family executed a deed of release relinquishing his right in favour of the other members of the joint family. A compromise was entered into among the other members of the family on 15.7.1964, and they divided the properties belonging to the joint family. The recitals of the division had been duly made in the deed of partition dated 15.7.64. Under the said partition, Andalammal had become the absolute owner of the property in Door No.28/29, Selva Vinayakar Koil Street. She executed a will on 12.7.1968 while in a sound disposing state of mind and power, and she bequeathed the suit property in favour of the 2nd plaintiff, the eldest grandson of her brother-in-law M.S. Devaraja Chettiar giving his limited right and an absolute right to his issue, and the Will had been duly registered. In the said Will, she appointed Devaraja Chettiar and the first plaintiff as the executors to carry out her wishes. She died on 23.3.73. As per the will, Devaraja Chettiar had been managing the suit house. Devaraja Chettiar died in 1975, and his son Deenadayalu also died on 7.2.78 leaving behind him the defendants 1 to 4. The plaintiffs permitted them to reside in the first floor which can easily fetch a rent of Rs. 400/- per month. It was done out of love and affection, and they are therefore in permissive possession and occupation from the plaintiffs. They are not having any legal right to reside there or claim any title adverse to the interest of the 2nd plaintiff. The 1st defendant induced the tenants who are defendants 5 to 11 to pay the rent to her and failed to render accounts to the plaintiffs or paid the rental collections to them. The defendants 5 to 11 also took sides and questioned the title of the plaintiffs. Hence, the first plaintiff filed a petition in O.P. No. 488 of 1978 for issue of probate in her capacity as an executrix of the will of late Andalammal, and probate was granted in her favour. Thus, she is entitled to administer the suit property. Pending the probate proceedings, the beneficiary, who is the second plaintiff issued a notice on 2.7.78 to all the tenants not to pay the rents to the first defendant and also required them to pay the arrears of rent from February 1978 onwards. The second defendant issued a notice to the 2nd plaintiff and others questioning the earlier partition deed dated 15.7.64. The members of the joint family thought it fit to allot a property for her maintenance. She was having absolute right to dispose of the same, and by the said will, she had given the property to the 2nd plaintiff. Thus, the defendants 1 to 4 have no right to dispute this disposition, and the defendants 5 to 11, who are the tenants, have no right to dispute the title of the plaintiffs also to the suit property. They are also equally liable to be evicted from their respective portions. The first plaintiff issued a notice to all the defendants about the order in the probate proceedings and also required the tenants to pay the arrears of rent and continue to pay the rents from March 1979 onwards to her. A similar notice was sent to the defendants 1 to 4 requiring them to deliver vacant possession of the portion in their occupation in the first floor and till delivery demanded a sum of Rs. 400/- as monthly rent from March 1979 onwards. The defendants refused to pay the rents. The defendants tenancy had been validly terminated by the notice dated 19.3.79. The first plaintiff filed this suit in her capacity as executrix appointed under the will of late Andalammal and, the second plaintiff who is the beneficiary under the will is also entitled to join the first plaintiff to file the suit. Hence this suit is filed for the said reliefs.
12. In the written statement filed by the 2nd defendant it is averred as follows:
The plaintiffs have no right to the suit property and have no right to claim or to obtain possession of the property from the defendants. The property at No.28/29 Selva Vinayagar Koil Street, belonged to the grandfather of the 2nd plaintiff and the defendants 2 to 4, who died on 7.12.75. Their father Deenadayalu died on 7.3.78. Andalammal has no right in the said property. The allotment to her in the family partition is not justifiable. Her husband Gopalakrishna Chettiar died on 23.7.80. All the properties were joint family properties with Devarajalu Chettiar as kartha. Nominal partition deed would appear to have been executed on 15.7.54. Andalammal was given a share in A Schedule, Devarajulu was given B Schedule, C Schedule was given to Narasimhan, D Schedule was given to Thirumangai and E Schedule was given to Saraswathi. The partition deed was only nominal and was not acted upon. They all lived only in the same house. At that point of time, an attachment was sought to be made over the property at Selvavinayagar Koil Street. Andalammal filed a claim petition, which was negatived by the civil court holding that she has no right over the property or its possession. Since there was no appeal there from, the said order has become final. A suit in C.S. No. 38/65 was filed by one Subbaraya Chettiar, wherein some accounts were claimed to be due by Deenadayalu. The said suit was settled. To the probate proceedings initiated by the plaintiffs, the defendants were not made parties, and they had no opportunity to contest the same. The proceedings therein will not bind the defendants, and no rights will flow to the plaintiffs on the basis of the same. After the death of Devarajalu, the property was transferred to the first defendant Saraswathi. The defendants only were in possession and enjoyment of the properties. The allegation that the defendants are in permissive possession of the properties is not correct. They are in occupation of the property in their own right. The plaintiffs had no title or possession. The court fee paid is insufficient. The suit is not maintainable, and hence, the same may be dismissed with costs.
C.S. No. 267/86:
13. The plaint averments are as follows:
The plaintiffs are the widow and sons of Deenadayalu Chetty and the plaintiffs 2 to 4 are the grand sons of Devaraja Chettiar. M.S. Devaraju Chettiar and his sons Deenadayalu and defendants 1 and 2 constituted the members of a joint family and they had large number of properties. The family of the Gopalakrishnan Chettiar was managed by the eldest son Deenadayalu. Devarja Chettiar, grand father created a nominal partition deed dated 15.7.64 to save the property from the reach of the creditors. After the birth of sons to Devaraja, it became slowly a trading family. Devaraja started doing some oil mill business in the name of Deenadayalu and another business was started in the name of Thirumangai, the 2nd defendant herein. Since Deenadayalu was an intelligent and hard working person, he was taking care of all the businesses. They had also borrowed moneys from some third parties to meet urgent needs. Even before the partition deed dated 15.7.1964, the grand father M.S. Devaraja revealed the idea of sending away Deenadayalu from the family and made release deed between them on 16.4.1963. It was stated in the document that earlier a sum of Rs. 20,000/- was given to Deenadayalu as a consideration for this release deed. The averment of advance of Rs. 20000/- is not true. It is also stated that the sum of Rs. 20000/- represents his 1/5th share of the 1/4th share in the family, according to the written statement of Devaraja Chettiar filed in C.S. No. 38/65. This itself recognises that Deenadayalu's branch will be entitled to a total 1/4th share in the family assets and that the sons of Deenadayalu will get the rest of the 8/28th share. The partition is an unequal partition. Andalammal was not entitled to a share at all. She was only a maintenance holder as her husband died on 23.7.1950 prior to 1956 Act. Devaraja Chettiar himself took B schedule property and he had taken 5 items of properties apart from the said properties two other properties were reserved for being sold and for the performance of the marriages of the two daughters of Devaraja Chettiar, namely, Padma and Manivalli. The E schedule was given to the first plaintiff and her minor children. All the properties, including the properties given to Andalamma, only continued to remain in the name of Devaraja Chettiar. There was no transfer or mutation of the records. Andalammal was given the A schedule property in the partition deed. Andalammal filed a claim petition in IA No.10442/64 under Order 38 Rule 8 and Order 21 Rule 48 CPC and the same was dismissed on 5.3.66 by the City Civil Court holding that Andalammal has no right over the property and the said order has become final. There was no appeal or revision against the said order. Subsequently, the amounts due to the creditor were paid off by M.S. Devaraja Chettiar. The A schedule property has been put on a very low value. Further the property at no point of time was transferred in the name of Andalammal or anybody. The Corporation Tax, Electricity deposit and Urban Land Tax even today are only in the name of M.S. Devaraja Chettiar and then on the first plaintiff. The partition deed was never acted upon. On 12.7.l968, it was stated that a Will was executed by Andalammal relieving the property to Govardhan, the 4th defendant herein and there was also provision for payment of some amount to plaintiffs 2 to 4 also. Andalammal passed away on 23.3.1973. A petition in OP No.488 of 1978 was filed on the file of this court for probate of the Will. The original allotment in favour of Andalammal itself is invalid and inoperative in law, and hence, all further transactions are equally invalid and inoperative. They are not binding on plaintiffs. Chandra, the third defendant herein is making claim over the said property on the basis of a Will stated to have been executed by Andalammal dated 12.7.68. It was also stated that the 4th and 5th defendant had obtained a probate of the Will of Andalamma. The Will and all further documents in relation thereto are not valid or binding on the plaintiffs and the plaintiffs are entitled to ignore the same. Taking advantage of the Will executed by Andalammal and the probate granted by this court, Chandra had already filed a suit in C.S. No. 446 of 1979 on the file of this Court for the recovery of the property and the same has now been renumbered as C.S. No. 619 of 1984. There was one property in Division No.16, bearing Door No.41 Narasa Iyer Street. Madras-21 and the extent of the same is 3000 Sq. ft. The rents were being collected by Devaraja Chettiar during his life time and subsequently by Deenadayalu. After the death of the first plaintiff's husband and the other plaintiff's father Deenadayalu, the first plaintiff is collecting the same. This property will be easily worth today at Rs. 5 lakhs. Devaraja Chettiar created another gift deed dated 6.11.1965 in favour of his daughter Chandra. The gift deed was also nominal and also never acted upon. The marriages of Chandra and all other daughters were performed on a grand scale. Hence, there was no need to settle or gift any valuable properties to them. The gift deed is invalid and he had no right to settle the valuable properties in favour of his daughter. The grand father had acted without any justification in alienating the property in Division No.17, bearing D. No. 2/26, New D. No. 14 of Telugu Chetty Street, Madras-21 by way of gift in favour of Chandra. This alienation is not valid. In the suit leaving the 3-1/2 acres sold to Ramakrishna Naidu, Chandraiya Naidu, etc. the balance of about 8 acres is only claim as available for partition. So far as the item 4 is concerned, there are lands in Ponneri Taluk in S. No. 81/1, 2 acres of lands were gifted to Gowri, 5th defendant herein under document dated 19.10.73. She is the only daughter of Chandra and there is no valid grounds given for any gift at all. In law, no gift of joint family property can be made to a grand daughter. The value of the property is worth not less than Rs. 4 lakhs today. No patta was even transferred in the name of Gowri. When, Gowri attempted to sell the property to one Kandasamy, the said Kandasamy had advertised in the Malaimurasu paper dated 26.1.1985 about the missing of the original settlement deed. The plaintiffs have sent a detailed letter dated 28.1.1985 to the said Kandasamy that the document was never in her possession or custody. After that the purported sale did not take place. All the other family members are attempting to sell one property or the other by false and fraudulent methods, but the same were prevented by the plaintiffs by taking necessary appropriate steps at the right time. There was a suit, namely O.S. No. 6795/78 on the file of the City Civil Court, Madras filed by D. Narasimhan, the first defendant herein for partition of B schedule properties alone. This suit is bad for partial partition. It will be seen that M.S. Devaraja had reserved most of the properties to himself and the partition has to be set aside on the ground of unequal partition and on the ground that he had reserved for himself very much more than half of the properties in the total properties, to which he is entitled and actually he is entitled to 1/4th share in the whole of the family properties while more than 7 times than 1st defendant, two times than the second defendant and 28 times than the plaintiffs is taken by him. So far as the C schedule is concerned, this was allotted to the first defendant, Narasimhan and the area of the same is 4800 Sq. ft. And the monthly rent will easily be Rs. 1,400/-. The second defendant was given two properties under the partition deed dated 15.7.64. On 9.12.1966, he married one Sethunidhi Ammal. After that on 14.12.66 he executed a sale deed of this property in favour of Saraswathi for Rs. 15,000/-. On 25.10.69 Saraswathi executed a mortgage with possession in favour of her own father M.S. Devaraja Chettiar for Rs. 20000/-. In this mortgage power of sale and power of appointing Receiver under Section 69 and 69A of the Transfer of property act is also given. The mortgage is not discharged/ On 7.12.75 Devaraja Chettiar passed away. Except the loan from the father all the other transactions are not true. Now Thirumangai is in possession of this property after 19.4.1976. There is one more property bearing D. No. 39, 40, New No.84, Perambalu Chetty Street, Old Washermen Pet, Madras. This property was allotted to the share of D. Thirumangai under D schedule of partition deed and the same is in the possession and custody of D. Thirumangai. There is a suit in O.S. No. 9620 of 1984 on the file of the II Assistant City Civil Court filed by one Fakkir Mohammed, claiming that he is an agreement holder to buy this property and asking for getting Income Tax clearance. He has also filed proceedings before the Registrar for compulsory registration of this property in his favour. Only plaintiff's 5/6th share is sought to be purchased by Fakkir Mohammed for Rs. 59000/-. This suit is being contested by the plaintiffs. F schedule property in the partition deed has been reserved for the expenses of the marriages of defendants 7 and 8 and the same is a fraudulent transaction. The marriages of Padma and Manivalli were performed on 7.9.64 and 28.1.67 respectively with other funds available in the family on a grand scale and there was really no need. There was actually no need to reserve any property for the marriages of his daughters. On 29.7.1968, M.S. Devaraja sold the Valluvan Street property and the same was bogusly sold without any reasons. There was a suit filed in CS. No. 38 of 1965 on the file of this Court by one T. Subbarayalu Chettiar challenging this entire partition dated 15.6.64 including the allotment of a share to Andalammal and the same was latter transferred to the City Civil Court, Madras. Even before the partition deed on 16.4.63 a release deed was obtained by M.S. Devaraja from Deenadayalu as though a sum of Rs. 20000/- was paid to him in full and final settlement. Actually nothing was paid to him. The plaintiffs have already issued a notice as early as on 28.6.78. Though all the respondents were served, they kept quiet. They were promising that the whole thing can be reopened at the later point of time and nothing was done. The suit was compromised on 17.4.69 and the parties filed joint endorsement agreeing for a decree being passed in favour of the first defendant for Rs. 47500/- with interest at 12% per annum. The plaintiffs were given a very small portion in E schedule property probably by way of abundant caution. They were not given any share of movables. On 9.5.1949, M.S. Devaraja Chettiar's wife died and all are living only in the A schedule property of the partition deed and this property and all other properties even now remain only in the name of M.S. Devaraja Chettiar and nobody has got any right over this property. There has been an unequal partition. The partition is invalid and inoperative in law. Their family had obtained loan from third party and there was no need to borrow any moneys for the improvement of the family properties. In the partition dated 15.7.1964, the release deed dated 16.4.1963 was referred to and no properties were allotted to his share. There was no need or urgency for execution of the partition deed dated 15.7.64. The plaintiffs and Govardhanan will be entitled to a 1/4th share along with D. Narasimhan and D. Thirumangai. Each will be entitled to 1/4th share while Chandra, Saraswathi, Padma and Manivalli will only be entitled to a 1/28th share of the properties left behind by the father M.S. Devaraja Chettiar and the same share, the plaintiffs and Narasimhan and Thirumangai will also be entitled to from out of their father's share. The properties had been grossly undervalued in the partition deed, with a view to avoid paying the huge stamp. After the death of Devaraja Chettiar, D. Narasimhan had filed O.P. No. 263/76 for issuance of Succession Certificate in his favour in respect of the properties left behind Devaraja Chettiar. The same was granted with a direction. However, nothing has been done. Devaraja Chettiar's 1/4th share will be succeeded by his 3 sons, Deenadayalu, which share is now represented by plaintiffs and the 4th defendant and the defendants 1 and 2 being the sons and defendants 3,6,7 and 8 being daughters, each being entitled to a 1/7th share in the 1/4th share of Devaraju Chettiar, i.e., each will be entitled to a 1/28th share in the whole of the estate. Thus, the plaintiffs and Govardhanan, the 4th defendant are entitled to 1/4th plus 1/28 as their share, defendants 1 and 2 each is entitled to a 1/4th plus 1/28 share and the defendants 3,6,7 and 8 will each be entitled to 1/28th share. So far as the plaintiffs are concerned, though they were made parties to the partition arrangement, the document is not binding on them or enforceable against them. They have not signed the partition deed at all. They never had any proper advice about this matter. Deenadayalu was only acting adverse to the family's interests and he never represented the plaintiff's interest at any time. The first plaintiff was forced to sign at the instance of the father in law and her signature will not bind the plaintiffs. When the father was alive, the mother was never the guardian and she was also not appointed as any guardian by any court of law and her signature representing the plaintiff's interests is therefore not binding. The plaintiffs claim is not in any way barred by limitation. The parties are in convenient enjoyment of some of the properties and they have to account for the collection made by them. In this suit, the claim for mesne profits is limited to a period of three years prior suit. All the parties are only co-owners and in joint possession, and hence, for all the above reasons, the suit has got to be decreed as asked for.
14. The defendants 1 and 3 to 5 have filed a written statement with the following averments:
The suit has been filed by the plaintiffs as a counter blast to O.S. No. 6795 of 1978 on the file of the City Civil Court, Madras filed by the 1st defendant for partition and separate possession of his 1/7th share in the properties left by his father Devaraja Chettiar. These properties are 'B' Schedule properties in the family partition dated 15.7.64. The defence of the contesting defendants in that suit OS 6795/78 is the very same one as is projected in CS 267/86. This suit is also barred by the principles of constructive res judicata. The plaintiffs are not in joint possession of the various plaint schedule properties. The plaintiffs have to value the suit under S. 37(2) of the Court Fees Act. The valuation made towards the claim of mesne profit in a sum of Rs. 100/- is wholly sham and arbitrary. The suit excluding various alienated items of properties and without impleading the alienees is not at all maintainable. All the alienated items have to be included, and all the alienees have to be impleaded. Before claiming such a declration and partition in this suit, they are bound to set aside the earlier partition dated 15.7.64 and also the release deed dated 16.4.63. The suit is also barred by limitation. The plaintiffs' right for setting aside the documents dated 16.4.63 and 15.7.64 have been hopelessly barred by limitation. Ever since the family partition dated 15.7.64 each of the allottees therein have been in separate possession and enjoyment of various items of property in their own right with ostensible ouster of the plaintiffs and adversely to the rights of the others. The defendants have prescribed their title to their respective properties. The family partition dated 15.7.64 is fair and valid. It was not a sham and nominal one as alleged by the plaintiffs. The partition was acted upon by all the parties including the plaintiffs. In fact, the plaintiffs have sold the property that fell to their share in the partition deed. Hence, the plaintiffs are estopped from now contending that the partition was nominal and was not acted upon. Devaraja Chettiar who obtained his share in 'B' Schedule properties under the partition was fully entitled to gift any item of the properties to the defendants 3 and 5. Similarly, Andalammal who obtained her share in 'A' Schedule properties under the partition was fully competent to give away that property to the 4th defendant. Defendants 3, 4 and 5 have been in absolute possession and enjoyment of the respective properties ever since the gift by Devaraja Chettiar, ever since the death of Andalammal, and in any event, they have prescribed their title to these properties by adverse possession. The plaintiffs and the 4th defendant have sold the properties allotted to them under 'E' Schedule to that partition, by a sale deed dated 16.6.84. Devaraja's estate viz. 'B' Schedule to the partition deed has also been assessed to estate duty, and there has been separate income tax and wealth tax assessments. The second defendant has effected a partition between himself and his children. Andalammal executed a Will regarding her property in favour of the 4th defendant and his children, which has been probated in O.P. No. 488/78. The alleged claim proceedings by Andalammal was not binding upon the defendants. Devaraja having gifted the property under a registered settlement deed in their favour had no right to give the same as security to any third party. The marriages of the defendants 7 and 8 were performed by borrowed funds, since the two properties reserved for this purpose under the partition could not be sold for a fair price then. Later on these two properties were sold for a fair price and debts incurred in connection with this marriage were discharged. The plaintiffs are bound by the release deed dated 16.4.63 executed by Deenadayalan, the husband of the first plaintiff and father of the plaintiffs 2 to 4. For all the above reasons, the suit has to be dismissed with costs.
15. In the written statement filed by the 2nd defendant it is averred as follows:
The release deed dated 16.4.63 by Deenadayalu Chettiar and the partition deed dated 15.7.64 are to be set aside. Hence, the suit is barred by limitation. The said partition deed has been accepted by all the parties to it and acted upon. The 2nd defendant has been put in possession of 'D' Schedule properties to the partition deed, and since then has been in sole, absolute and continuous enjoyment of the same. The 2nd defendant entered into a partition deed with his son on 26.3.80. These properties are item Nos. 8 and 9 of the plaint schedule. The 2nd defendant has perfected his title to these properties by adverse possession. The plaintiffs should pay court fees on the value of the share in the properties. Plaintiffs separated from the family of Devaraja Chettiar in 1964 itself and thereafter never lived with any of the defendants. The payment of court fee in respect of the mesne profits is illegal, and hence, this claim has to be summarily rejected. The plaintiffs themselves have acted upon the partition deed by exclusive possession of 'E' Schedule properties under the partition and selling the same under a sale deed dated 16.6.84. Hence the partition deed was never treated as nominal. Having acted upon the partition deed, the plaintiffs are estopped from denying its genuineness and validity. Hence, the suit is liable to be dismissed with costs.
T.O.S. No. 6/2000:
16. The plaint averments are as follows:
The plaintiff's grandfather M.S. Devaraja Chettiar died on 7.12.1975. He executed a Will at Cholavaram Village, Ponneri Taluk, Chengalpattu District on 26.10.1975. He has not appointed any executor under the Will. Plaintiff is the grandson of the deceased. The plaintiff was not aware of the Will earlier. The plaintiff along with his mother and two brothers viz. defendants 1 to 3 filed C.S. No. 267/86 for partition and separate possession. Only in or about the third week of February 1989, when they were looking into some old papers, they casually got the said Will. If they were aware of the Will, they would have mentioned the same in the plaint in C.S. 267/86. Actually a xerox copy of the Will was filed, and an application in A. No. 1296/89 filed by them was ordered by the learned Master and that order has become final. The grandfather had not done anything out of the way to any of the parties. He had given properties to his sons who are normally entitled to the same. He has omitted his daughters, probably as he felt that they had already been sufficiently provided earlier, and they had been married well by giving sufficient jewels, etc. Hence, there was no delay in filing this suit. The first attesting witness to the Will is one Mr. Kapali, who had passed away. Nobody either he or his relations are now residing in his address at No.5, Brahmin Street, Adambakkam. His wife also vacated and left long ago. They had no children. The 2nd attesting witness S. Ramasamy Iyer had also passed away. His son R. Jambunathan had given an affidavit that the will contains the signature of his father. The testator left behind him the defendants 1 to 11 as his next of kin. Hence, this suit has been filed for the above said relief.
17. The defendants 6, 7, 8, 9, 12 and 13 filed a written statement with the following averments:
The alleged Will dated 26.10.75 is a false and fabricated document and not a true will of late M.S. Devaraja Chetty. The plaintiff has no right to seek letters of administration for the alleged will. Devaraja Chetty never executed any will, and he died intestate. The plaintiff and the defendants 1 to 3, who are the legal heirs of Deenadayalan, the eldest son of late Devaraja Chetty have fabricated the alleged will with the help, connivance and collusion of persons who subscribed their signatures as attestors, in order to gain wrongful gain for themselves. Assuming that the alleged will contains the signature of Devaraja Chetty, the same ought to have been filed up in a blank paper, containing his signature. The alleged will was fabricated several years after the death of Devaraja Chetty in order to project the same by way of defence to O.S. No. 6795/78 and C.S. No. 619/84. The allegation regarding the knowledge of the Will alleged by the plaintiff is utterly false. When the three brothers Deenadayalan, Narasimhan and Thirumangai were searching all the records, documents, accounts and cash in the house, after the death of Devaraj Chetty on 7.12.1975, the alleged will was not seen in the house. Before the death of Devaraj Chetty, Deenadayalan and his family members, the plaintiff and defendants 1 to 3 went out from the residence of Devaraj Chetty. The 4th defendant also went away from the house, one or two years after his marriage. The 5th defendant was living separately from Devaraj Chetty for years before the death of Devaraj Chetty. In 1975, none of the sons or their families were living with Devaraj Chetty. It is only the defendants 6 and 9 who were living in the house where Devaraj Chetty was living and were attending to his needs. If any will was executed by him, he would have informed the same to them. He never lived at Solavaram at any time. The plaintiff's father Deenadayalan was living at Solavaram along with his family. There were disputes between Devaraj Chetty and Deenadayalan. Devaraj Chetty never went to the house of Deenadayalan till his death. Similarly he never went to the houses of the defendants 4 and 5. The plaintiff has not stated in which place of the house, the alleged will was kept and where it was traced. If it is true that the will was traced in the house of Deenadayalan, there was no need for Devaraj Chetty to keep the alleged will in the house of the plaintiff and defendants 1 to 3, when he was residing only at 10, Selva Vinayagar Koil Street, Madras. For more than 6 months prior to the alleged will and even subsequent to the alleged will, Devaraj Chetty was suffering from several ailments taking extensive and intensive medical treatment. He had no physical and mental capacity to execute the alleged will. He could not have executed the alleged will in a sound and disposing state of mind. The properties are joint family properties owned by the father of Devaraj Chetty viz. Madurai Subbaiah Chetty. The family properties were partitioned under a registered partition deed dated 15.7.64. Ever since 15.7.64, Devaraj Chetty, his sister-in-law Andalammal, his three sons Deenadayalan, Narasimhan and Thirumangai have all been in separate possession and enjoyment of their respective properties. Devaraj Chetty has no right to execute any will in regard to the properties which do not belong to him. Hence, the suit may be dismissed with costs.
18. The 11th defendant filed a written statement with the following allegations:
The alleged Will dated 26.10.75 is a false and fabricated document. Devaraj Chetty never executed any will and he died intestate. The alleged will ought to have been filled up in blank paper containing the signature of Devaraj Chetty. The alleged will was fabricated with the collusion and connivance of the persons, who subscribed their signatures as attestors. It was fabricated several years after the death of Devaraj Chetty in order to project the same by way of defence to O.S. No. 6795/78 and CS 619/84. While Deenadayalan, Narasimhan and Thirumangai were searching the records and documents in the house, the alleged will was not seen. Only the defendants 6 and 9 were living in the house where Devaraj Chetty was living and were attending to his needs. There are suspicious circumstances surrounding the execution of the Will. The propounder of the will must remove all those suspicious circumstances. Devaraj Chetty never lived at Solavaram. Deenadayalan, father of the plaintiff was living at Solavaram. There were disputes between Devaraj Chetty and the plaintiff's father Deenadayalan. There was no need for Devaraj Chetty to keep the alleged will in the house of the plaintiff and the defendants 1 to 3. Devaraj Chetty was suffering from several ailments for more than 6 months prior to the alleged will. He had no physical and mental capacity to execute the alleged will. The family properties were partitioned under a partition deed dated 15.7.64, and the parties there under were in separate possession of their respective parties. The alleged will cannot give any right to Devaraj Chetty to execute any Will with regard to properties which do not belong to him. Hence the suit has to be dismissed with costs.
19. On the above pleadings, the following issues were framed:
TR. C.S. 1249/93:
1) Whether the sale by deceased Deenadayalu will bind the other sharers?
2) Whether the plaintiff is entitled to partition?
3) To what relief if any, the plaintiff is entitled?
TR. C.S. 210/2000:
1) Whether the plaintiffs are entitled to vacant possession against defendants 1 to 11 of the suit property bearing door No.10(Old No.28/29) Selva Vinayagar Koil Street, Old Washermenpet, Madras-21?
2) Whether the plaintiffs are entitled to recover mesne profits at the rate of Rs. 400/- per month from the date of the plaint till delivery of possession?
3) Whether the plaintiffs are entitled to recover a sum of Rs. 11,880/- from defendants 5 to 11 representing past mesne profits and a sum of Rs. 660/- till delivery of possession from the date of plaint?
4) Whether the plaintiffs are entitled to title to the suit properties?
5) Whether the defendants 1 to 4 are entitled to question the partition deed?
6) Whether the defendants 1 to 4 are estopped from questioning the partition deed?
7) Whether the registered partition deed dated 15.7.1964 is nominal and not acted upon?
8) To what other reliefs are the parties entitled?
C.S. 267/86:
1) Whether the will dated 26.10.1975 propounded by the plaintiff Sudarsana Narayan is true and genuine and whether it was executed by late M.S. Devaraj Chetty in a sound and disposing state of mind?
2) Whether the plaintiffs are barred from filing the suit and whether the suit is barred by constructive res judicata?
3) Whether the suit filed without including alienated items and without impleading all the alienees is legally maintainable?
4) Whether the plaintiffs are entitled to file the suit for partition without setting aside the earlier partition dated 15.7.1964 and release deed dated 16.4.1963?
5) Whether the partition deed dated 15.7.1964 is sham and nominal and not acted upon as contended by the plaintiffs?
6) Whether the properties continue to be joint family properties after 15.7.1964?
7) Whether the gift by late Devaraj Chetty in favour of the 3rd defendant, the gift by Andalammal in favour of the 4th defendant and the gift by Devaraj Chetty in favour of the 5th defendant are valid under law?
8) Whether in any event defendants 2 to 5, 10 and 11 have prescribed title to their respective items by adverse possession?
9) Whether the plaintiffs are not bound by the release deed dated 16.4.1963 executed by Deenadayalan and whether his branch have any further right in the family properties?
10) Whether the suit has been properly valued and whether proper court fee has been paid on the plaint?
20. The following additional issues were framed in Tr. C.S. 1249/93:
1) Whether the partition deed dated 15.7.1964 relating to agricultural lands was not acted upon?
2) Whether the said agricultural lands were in the separate possession of Deenadayalu for more than 25 years?
T.O.S. 6/2000:
1) Whether the Will dated 26.10.1975 propounded by the plaintiff is true and valid under law?
2) Whether the Will was executed by the deceased in a sound and disposing state of mind?
3) To what relief?
21. ISSUES IN CS 267/86, Tr. CS 210/2000 and Tr. CS 1249/93 and ADDITIONAL ISSUE IN Tr. CS 1249/93:
The plaintiffs in C.S. No. 267 of 1986 have come forward with the suit seeking partition of the suit schedule properties and to allot them 1/3rd share therein along with vacant possession and for mesne profits, while the plaintiffs in Tr. C.S. No. 210 of 2000 have filed the said suit for recovery of possession of the suit properties stated therein along with mesne profits. The plaintiff in Tr. C.S. No. 1249/93 has filed the said suit for division of the properties described in A to D Schedule and to allot 1/7th share in such properties, while the plaintiff in T.O.S. No. 6/2000 has filed the said suit for issue of letters of administration in respect of the Will executed by Devaraja Chettiar.
22. The learned Senior Counsel appearing for the plaintiffs in CS 267/86 and for the plaintiff in TOS 6/2000 would submit that CS 267/86 is a comprehensive suit for partition; that the main question to be decided is whether the release deed marked as Ex.P1 and the partition deed dated 15.7.64 marked as Ex.P2 are sham and nominal; that evidence is available to show that the said documents have been brought about just to defeat the creditors; that the so-called release deed and the partition deed are only make belief affairs; that it is pertinent to note that Devaraj Chettiar continued to be in possession of all the properties; that Exs. P1 and P2 are only on paper; that from Exs. D55 to D58 it would be clear that moneys have been borrowed by the joint family members; that Ex.D50 is the family genealogy; that it is admitted that the suit property is a joint family property; that in Ex.P1 release deed, executed by Deenadayalu, the first son of Devaraja Chettiar, there is no schedule of property, and no value of the property has been given; that Devaraja Chettiar brought about a scheme to keep away the joint family property from the creditors, and hence Ex.P1 release deed was executed only to defeat the claim of the creditors; that Devaraja Chettiar and other family members continued to reside at 28/29, Selva Vinayakar Koil Street; that it is pertinent to note that the so-called creditors know that the release deed under Ex.P1 is sham and nominal, which is evidenced by Exs. D35 to D38 and D51; that Ex.D38 Judgment passed in CS 38/65 shows that Devaraja Chetty accepted the position that Exs. P1 and P2, though impliedly by his conduct by agreeing to pay to the creditors and offering property and acting in derogation of the purported allegation of transfer under Ex.P2, are sham and nominal; that though the borrowings made by Dheenadayalu was to pay to Devaraja Chettiar, the so-called Exs. P1 and P2 are invalid; that if the said documents are true and valid, Devaraja Chettiar has to contest the suit on merits; that since Devaraja Chettiar knew well that Exs. P1 and P2 are only make belief, he agreed to pay the creditors and offer them security, contrary to the purported allotment of the defendants; that the property at Door No.14, Telugu Chetty Street in 'B' Schedule allotted to Devaraja Chettiar was gifted by him in favour of Chandrammal; that it is not in dispute that this property has been offered as security by him; that from the documentary evidence it would be clear that all the properties continued to be in the name of Devaraja Chettiar and continued so even after his demise; that there has been no mention of public records; that the property allotted to Andalammal under Ex.P2 was attached by Subbiah in O.S. No. 3910/64; that in a claim petition filed by Andalammal, the court has negatived her claim; that Ex.D51 is the judgment passed in that claim petition, wherein there is a finding that she has no right and the so-called partition is sham and nominal, and that order has become final. Added further the learned Senior Counsel that it is pertinent to note that Devaraja Chettiar has admitted in his Will dated 26.10.75 under Ex.D11 that the partition is sham and nominal and the creditors also knew that the partition was sham; that the plaintiffs have proved that the property at 319, TH Road was under the control and possession of Devaraja Chettiar before and after the partition and after his demise, it was managed by Deenadayalu; that from Exs. D63 tenancy agreement and D43 note book, it is seen that Devaraja Chettiar was collecting the rent and paying a part of the same to Dheenadayalu and Thirumangai; that a perusal of Exs. D55 to D58 would show that moneys were borrowed by Devaraja Chettiar, Dheenadayalu and the other sons of Devaraja Chettiar for the purpose of construction of the property; that though Dheenadayalu executed the alleged release deed under Ex.P1, he continues to participate in the affairs of the joint family by joining the execution of security documents for borrowing the moneys; that PW2 has admitted that Thirumangai married his aunt's daughter against the wishes of Devaraja Chettiar; that at the time of the execution of the sham and nominal Ex.P2 partition deed, Thirumangai had no intention of getting married; that when he married his aunt's daughter, Devaraja Chettiar was alarmed and made him to execute Ex.D45, which is a sale deed purportedly selling the said property to Saraswathi Rajan; that this was done on 14.12.1966 just four days after the marriage of Thirumangai; that in order to have a hold over the property, Devaraja Chettiar made Saraswathi Rajan to execute Ex.D46 mortgage deed in his favour; that it remains to be stated that after his death, Ex.D47 was executed between Saraswathi Rajan and Thirumangai, in which there is a categorical admissiokn that Exs. D45 and D46 were sham and nominal transactions; that after the death of Devaraja Chettiar, the properties were managed by Dheenadayalu, as evident from Ex.D64 rental adjustment agreement; that it is pertinent to note that there was no mutation of the public records carried out in the name of the respective allottees; that a perusal of Exs. D27 to D34 would show that Devaraja Chettiar was residing in the 'A' Schedule property allegedly allotted to Andalammal; that 'B' Schedule property was purportedly allotted to Devaraja Chettiar under Ex.P2 which is sham and nominal; that a perusal of Exs. D41 and D42 documents would indicate that Devaraja Chettiar continued to remain as the owner of that property; that it is pertinent to note that the other properties continued to stand in the name of Devaraja Chettiar; that the defendants have not produced any records to show that Narasimhan took possession of the 'C' Schedule property pursuant to the alleged partition; that so far as the Perambalu Chetty Street property under 'D' Schedule is concerned, the same also continued to stand in the name of Devaraja Chettiar, which is evidenced by Exs. D44, D48 and D49; that 'E' Schedule property was sold by the plaintiffs only to meet some urgent family necessities; that after the death of Devaraja Chettiar and Deenadayalu, the defendants started acting as if the partition under Ex.P2 was effected and started dealing with the joint family properties; that at that point of time, the plaintiffs were deserted by their own brother Govardhan; that since the plaintiffs were placed in difficult financial situation, they had to borrow money from one Pakkir Mohammed, who insisted on the security of 'E' Schedule property in the form of an unregistered sale deed which he assured would be returned on repayment; that however, Pakkir Mohammed presented the document for compulsory registration; that he also filed a suit in OS Nlo.9620 of 1984 for specific performance; that a compromise was arrived at in 1989 and the property was registered in the name of Pakkir Mohammed only in 1991; that Ex.P9 is only a pending document; that a perusal of Ex.P9 would reveal that the plaintiffs have assured the purchaser that they will indemnify him if ultimately they are held to be disentitled to the said property; that the admissions made in Ex.P9 as to the partition are erroneous, since the plaintiffs have been consistently maintaining from 1978 onwards that the partition was only sham and nominal and never acted upon, which is evident from the written statements filed in Tr. CS 1249/93 and Tr. CS 210/2000; that the dealing of 'E' Schedule property by the plaintiffs will not operate as estoppel against them or stop them from claiming partition; that the plaintiffs are ready and willing to adjust this amount, if partition is ordered; and that during the life time of Devaraja Chettiar, the rents from this property were collected by him through the first plaintiff and all were living only at 28/29 Selva Vinayakar Koil Street, as joint family. Added further the learned Senior Counsel that it is pertinent to note that the properties under 'F' Schedule were purportedly reserved for meeting the marriage expenses of Padmavathi and Manivalli; that their marriages were performed in 1964 and 1967 respectively, which is evident from Exs. D13 and D14 marriage invitations; that it has to be noted that F Schedule property was sold on 14.11.68 under Ex.P17 after their marriages; that this property was sold to Kasiammal, wife of Subbiah Nadar, one of the creditors for discharge of debt by adjusting part of sale consideration; that the purported allotment of F Schedule is only make belief and it continued to be the joint family property and dealt with as such; that it is pertinent to note that there is a reference to Ex.P2 partition deed in this sale deed and it is of no legal effect because the purpose mentioned in Ex.P2 has not been acted upon; that though it is alleged that 2 acres of land was gifted by Devaraja Chettiar in favour of Gowri, no gift deed is produced; that the joint family property cannot be the subject matter of right; that it has been in the possession of the plaintiffs even today, which is evident from Exs. D61 and D62 notices; that the property tax receipt and patta are in the name of Devaraja Chetty; that during the pendency of the suit in 1996, it was stated that the patta has been changed in the name of Gowri without any notice and enquiry; that Ex.D2 series school fee receipts of PW1, D5 series, Exs. D6 and D7 mess bills of PW1 sent to Deenadayalu, Exs. D8 to D12 money order coupons for the moneys sent by Dheenadayalu to PW1, Exs. D13 to D15 money order coupons for the moneys sent by the second plaintiff Nandakumar to PW1, Exs. D1 and D17 to D21 letters sent by PW1 to Dheenadayalu, Ex.D22 letter sent by Jagadeesan to Nandakumar, Ex.D24 radio license in the name of Nandakumar, Exs. D25 and D26 notice and receipt and Exs. D52 to D54 discharged promotes executed by Deenadayalu show that the plaintiffs have always resided in the property at 28/29 Selva Vinayakar Koil Street before and after the partition and were not residing at Cholavaram; that Exs. P20 and P21 series show that the plaintiffs 2 and 3 were studying at Cholavaram, and the said documents have no meaning; that for the purposes of admission in the school, the address at Janapam Chattiram has been mentioned; that it is relevant to note that the obvious motive of Deenadayalu appears to be that the moneys receivable to the estate of Devaraja Chettiar should not go to the female heirs, and that is the reason why he is relying upon the so-called partition under Ex.P2; that the available evidence would indicate that the family was in the habit of resorting to the execution of sham and nominal documents to fulfill some limited purpose; that the main objective of Deenadayalu appears to be to only safeguard the interests of the joint family; that the dominating influence of Chandrammal on the family patriarch is evident from the fact that she appears to have induced Devaraja Chettiar to execute gift deeds in her favour and in her daughter's favour and she has also procured a Will in favour of Govardhan from Andalammal and also 250 sovereign of gold and silver articles at the time of demise of Devaraja Chettiar and not denied in the written statement filed by Chandrammal; and that the reason for Saraswathi Rajan, who was examined as PW2, to give false evidence is also obvious because she wants to protect the property at 319, T.H. Road for her son-in-law Janarthanam who is the son of Thirumangai. Added further the learned Senior Counsel that the question whether the oil business run by Devaraja Chettiar was the joint family business or separate business may not be of any relevant or consequence; that that all the members of the family were not parties to Ex.P1 release deed; that the creditors have also pleaded in CS 38/65 that the borrowing was not only for the business but also for joint family purposes; that a perusal of paragraph 9 of the written statement in that suit, as found under Ex.D36 would clearly show that whole thing is sham and nominal and fraudulent, just to defeat the creditors and nothing else ; that apart from 1/20th share allotted to Dheenadayalu, there is still 19/20 shares; that this will show that the so-called partition and the allotment of shares are sham and make belief; that the question whether the debt was binding on the joint family is irrelevant; that since the so-called allotment was only a make belief, no care has been taken to have an equal distribution; that this not the case to set aside the partition deed by the minors on attaining majority; that that is not the case to reopen the partition deed on the ground that it is unequal; that sham means a make belief one, while nominal also means a make belief one; that both do not create any legal rights and both will not have any existence in the eye of law; that if Exs. P1 and P2 are sham and nominal, they are non-est in the eye of law, and there is no necessity to seek for a prayer to set aside the same or seek for a declaration that they are sham and nominal; that the decision reported in 1948 (1) MLJ 270 is relevant in this regard; that if the documents have no legal existence, the right, title and interest of the plaintiffs in the joint family properties were never affected and they continue to be joint family properties available for partition; that only after the lifetime of Devaraja Chettiar, while getting a succession certificate for the purpose of collecting debts, a reference was made to the partition deed; that it is pertinent to note that in the OP for succession certificate, no joint family property was involved; that the question of limitation in this case does not arise; that if the defendants claim title under the so-called partition deed under Ex.P2, there is no question of adverse possession; that the question of ouster and adverse possession will come only if the partition is sham; that during the lifetime of Devaraja Chettiar nobody had any animus to claim adverse possession of the joint family properties; that only after the demise of Devaraja Chettiar, there was a reference to the partition deed dated 15.7.64 in the proceedings for issue of a succession certificate in the year 1976, marked as Ex.P19; that the suit in CS 267/86 for partition is filed in 1986 i.e. within 12 years from 1976, and hence, no question of ouster or adverse possession would arise; that it remains to be stated that the plaintiffs have not questioned the alienation and that is why 'F' Schedule properties have not been included in the plaint schedule; that regarding 'E' Schedule properties, they have been compelled to part with the same during the pendency of the litigation, since the earlier suits have been initiated even in the year 1978 and 1979; that since the plaintiffs have no money to meet the litigation expenses, they borrowed money from the third party, and the third party has taken the document stating that he will keep it as security, but he put that document for compulsory registration, and thus, the recitals in Ex.P9 cannot be taken as voluntary admission; that it is well settled that the fact of an alleged admission depends upon the circumstances in which it was made; that the giving the value of 'A' to 'F' Schedule properties at Rs. 20,000/- uniformly clearly shows that it is only a make belief affairs; that so far as the non examination of the wife of Deenadayalu is concerned, it is admitted by PW1 himself in his evidence that his mother is suffering from high blood pressure and arthritis and not in a position to move about, and thus a proper explanation has been given for the non-examination of the mother; that the non-examination of the wife of Dheenadayalu may not be fatal and there is no case made out for drawing adverse inference, and hence, the plaintiffs are entitled to the partition as asked for in CS 267/86, and the suit for recovery of possession in Tr. CS 210/2000 has got to be dismissed. Added further the learned Senior Counsel that the Will dated 26.10.1975 executed by Devaraja Chettiar as found in Ex.P1 in TOS 6/2000 has been proved in a manner known to law; that the defendants themselves have admitted that Ex.P1 document contains the signature of the testator, and thus the burden of proof is only upon the defendants to disprove the said document; that it is pertinent to note that the attestation is also proved by identifying the signature of one of the attestors; that it is not the case of the defendants that the Will was extracted by undue influence or that there are suspicious circumstances; that a perusal of the recitals in Ex.P1 would clearly show that they are all true; that for writing a will, no format or no stamp is necessary; that the registration of the document is not compulsory; that if a person is going to fabricate a Will with a signature in blank paper, he would not have put 'ippadikku', and thus, it is clear that 'ippadikku' put in natural course and nothing wrong in it; that the will is duly executed and attested by two witnesses; that the said will is an outcome of the testator's own will and volition; that there is unnatural about the will; that regarding the proof of this kind of Will and the delay in approaching the court, the decision reported in 2001 (3) CTC 283 is very much relevant; and hence, the letters of administration as asked for in TOS 6/2000 has got to be granted in favour of the plaintiff. The learned Senior Counsel would further submit that the Will of Andalammal does not cover her entire assets such as the mortgage amounts due to her from some parties, which is evident from Exs. D59 and D60; that she had no independent source of income; that it was only the money out of the joint family controlled by Devaraja Chettiar; that the amounts bequeathed to the plaintiffs 2 to 4 have not been paid to them; that it is pertinent to note that the plaintiffs have not been impleaded in the said probate proceedings even though they have a caveat able interest in the estate of Andalammal; that PW1 has admitted that he has not been adopted by Andalammal nor is this mentioned in the said Will; that Andalammal was under a paralytic attack from 1968 onwards and was not in a sound state of mind; that the said Will of Andalammal was not acted upon during the lifetime of Devaraja Chettiar even though he has been appointed as the joint executor of the Will; that Devaraja Chettiar himself does not appear to have taken cognizance of the Will as in Exs. D59 and D60 he has only acted as the legal representative of Andalammal and not as the executor of the Will; that the probate was not applied for during the lifetime of Deenadayalu as it was well known that he would have objected to the same, and hence, the probate granted in respect of the Will of Andalammal has got to be revoked.
23. The learned Counsel appearing for the plaintiffs in Tr. CS 210/2000 and Tr. CS 1249/1993 would submit that the subject matter in CS 267/86, Tr. CS 1249/93 and Tr. CS 210/2000 are joint family properties; that Madurai Subbiah Chettiar had two sons viz. Gopalakrishna Chettiar and Devaraja Chettiar that being joint family properties, Gopalakrishna Chettiar had a half share and Devaraja Chettiar had the other half share; that under the Hindu Women's Right to Property Act 1937, on the death of Gopalakrishna Chettiar, his widow Andalammal becomes entitled to his half share; that when she became entitled to half share, she was entitled to life interest; that as per the provisions of Hindu Succession Act, 1956, her life estate ripens or enlarges into an absolute estate, and thus, she was entitled to a half share in all the properties; that however, she was allotted only one item of property at 28/29 Selva Vinayakar Koil Street viz. 'A' Schedule property under Ex.P2 partition deed; that being the owner of that property, Andalammal executed a Will bequeathing the said property to D. Govardan and his sons; that under the Will, she appointed Chandrammal and Devaraja Chettiar as executors; that since probate was not obtained during the lifetime of Devaraja Chettiar and since the wife and sons of Deenadayalu have got into possession of A Schedule property, Chandrammal, one of the executors under the Will, applied for and obtained probate to the Will of Andalammal dated 12.7.68 in OP 488/78 and instituted the suit in Tr. CS 210/2000; that Andalammal was perfectly entitled to execute the said Will; that there are ample evidence to show that after the partition in 1964, the three sons of Devaraja Chettiar went out and were living separately; that Deenadayalu, his wife and sons were living in Cholavaram during 1972-76, and hence, they could not have been living at 28/29, Selva Vinayakar Koil Street; that DW1 has also admitted in his evidence that he also studied in the Government Higher Secondary School at Cholvaram; that when direct and positive evidence of Dheenadayalu and his branch having lived at Cholavaram has been placed, the circumstance of Dheenadayalu having given his address as 28/29 Selva Vinayakar Koil Street or the circumstance of their not having done anything to effect mutation of names etc., would not prove that the partition is not true and that the same was not acted upon; that the title of Andalammal to 'A' Schedule property has been proved; that when once title is proved, the defendants in Tr. CS 210/2000 have to prove in what capacity they have been in possession; that the rents from the property were received by the branch of Dheenadayalu in 1979; that DW1 has admitted that his brother Nandakumar as receiver of the property, has been depositing Rs. 6,000/- per month in the Court, and thus, the defendants have to account for the exact amount they have collected at different points of time and pay the said sum to the plaintiffs in Tr. CS 210/2000; that apart from that, they have also to pay mesne profits towards their occupation of the big portion of the property. Added further the learned Counsel that the story of the plaintiffs in CS 267/86 that Ex.P1 release deed and Ex.P2 partition deed were brought about in order to defeat and delay the creditors and that the said partition did not come into effect and was not acted upon is false; that the available evidence would show that the debts of Subbiah Nadar and Subbarayalu Chetty are debts of Dheenadayalu and not family debts; that in order to save the reputation of the family, Devaraja Chettiar agreed to pay the debts incurred by Dheenadayalu; that subsequently, Devaraja Chettiar discharged the two debts to the tune of Rs. 51,000/-, which is evidenced by Exs. D55 and D57 discharged pro-notes; that it is pertinent to note that there were no other creditors except Subbarayalu Chetty and Subbiah Nadar; that it is proved by evidence of DW1 that the value of the estate is Rs. 16.5 lakhs and the value of the estate according to the plaint in CS 38/65 is Rs. 20 lakhs, and hence, there could not have been any intention on the part of Devaraja Chettiar to create a sham and nominal partition with the intention of defrauding the creditors; that according to the evidence of DW1, his father Dheenadayalu filed a written statement in CS 38/65 admitting that there was no family business and his family business was not a trading one and he started oil business on his own and the release deed and partition deed under Exs. P1 and P2 were bona fide and it was not prepared with the intention to defraud the creditors; that it is pertinent to note that in the proceedings for issue of succession certificate in OP 263/76 initiated by Narasimhan, Dheenadayalu filed a counter stating that there was a partition in respect of immovable properties, but in regard to movables like money assets there was no partition; that under P2 partition deed, 'E' Schedule property allotted to the plaintiffs in CS 267/86 was sold by them; that to get over this situation, DW1 has deposed that it was a compulsory sale by them; that whether the sale was voluntary or compulsory, the fact remains that tracing their title to the partition deed, they have sold the property; that gifting one item of property which fell to the share of Devaraja Chettiar under B Schedule viz. Door No.14, Telugu Chetty Street, to his eldest daughter Chandra Jagadeesan under Ex.P10 and two acres of land in Alinjiwalkkam Vilage to his grand daughter Gowri would also prove that the partition was acted upon; that so also, 'F' Schedule properties which was reserved for meeting the marriage expenses of two unmarried daughters Padma and Manivalli, were sold for their marriages and the sale proceeds were utilized for meeting the debts incurred by Devaraja Chettiar for their marriages; that similarly, Andalammal who obtained 'A' Schedule property under the partition had executed a registered Will dated 12.7.68 bequeathing the same to D. Govardan for life with vested remainder to his sons; that Thirumangai the third son of Devaraja Chettiar obtained D Schedule property and effected partition of the said property between himself and his wife and sons, as evidenced by Ex.P12; that it is evident from Ex.P11 that all the defendants in the family of Devaraja Chettiar have sold the lands in Thandlakeni Veillage; that their father Dheenadayalu and Mrs. Padmavathi sold their respective extents in the said land; that there has been no acceptable proof to show that the value of the properties allotted to different persons was highly different so as to prick the conscience of anyone; that after partition, three sons of Devaraja Chettiar started living separately; that while the value of the properties are each shown as Rs. 20,000/- in the partition deed, Dheenadayalu's branch was not entitled to separate allotment of 'E' Schedule property; that Dheenadayalu had already been given Rs. 20,000/- as consideration for the release deed under Ex.P1; that apart from that Dheenadayalu's family was given a house property in Sowcarpet which was valued at Rs. 20,000/-; that this means that Dheenadayalu's branch were given property worth Rs. 40,000/-; that it is not the case of Dheenadayalu's branch that his father Dheenadayalu colluded with his brothers and his father in depriving his sons of their lawful share in the property; and that it is pertinent to note that the wife of Dheenadayalu viz. Saraswathi filed a written statement confirming the written statement of the 1st defendant Devaraja Chettiar about partition. Added further the learned counsel that much ado is sought to be made about a transaction entered into between Thirumangai, his elder sister cum mother-in-law and Devaraja Chettiar under Exs. D45 to D47; that PW2 Saraswathi Rajan has given explanation under what circumstances these transactions came into existence; that there is a clear confirmation of the truth and validity of Exs. P1 and P2 by Dheenadayalu himself in CS 38/65 and Succession OP 263/76; that the suit for partition is not maintainable in law without seeking the relief of setting aside the partition deed under Ex.P2 within the limitation period; that the plaintiffs in CS 267/86 ought to have instituted appropriate proceedings to set aside the partition within a period of three years from the date of the minors' attaining majority; that it is settled law that when a person who institutes a suit claiming various reliefs is a eo-nominee party to a deed or decree previously which is sought to be canvassed in subsequent proceedings, he cannot do so without setting aside the deed or document to which he himself was a party, within the prescribed limitation period; that the suit in CS 267/86 is barred by limitation; that the said suit is also not maintainable in view of the fact that the 'F' Schedule property under the partition has not been included in the plaint, and similarly, the lands which were alienated in favour of third parties have not also been included in the suit; that it is settled law that the alienees should be impleaded as parties so that while directing partition of property by metes and bounds, equities may be worked out by allotting the alienated items to the share of alienor; that admittedly, Sudarsana Narayanan, examined as DW1 was two years old at the time of partition, and therefore, he could not have had any personal knowledge about the value of various properties; that he has not examined any engineer or any other qualified person to speak with regard to the value of the properties which prevailed in 1964; that subsequent cost escalation is totally irrelevant for deciding the question if the partition was equal as on 1964; that when all people agreed to divide the property and executed partition deed, mathematical equity cannot be insisted upon; and hence, Tr. CS 210/2000 and Tr. CS 1249/93 have got to be decreed and a direction for partition of the properties of Devaraja Chettiar between all his sons and daughters or their respective branches has got to be issued. Added further the learned counsel that Deenadayalu and his branch who entered the house property at 28/29 Selva Vinayakar Koil Street under the leave and license granted by Chandrammal, started making adverse or hostile claims and started collected the rents from the tenants; that there arose a necessity for Chandrammal and Govardhan to assert their right to the property under the Will of Andalammal dated 12.7.68, and hence, Chandrammal filed OP No.488/78 for grant of probate of the said Will; that probate was granted on 13.3.79; that the wife and sons of Dheenadayalu except Govardan filed Application No.4656/2000 for revocation of grant of probate; that even in the plaint in CS 267/86 in paragraph 10, they have admitted about the Will of Andalammal dated 12.7.68, the death of Andalammal on 23.3.73 and the grant of probate on 13.3.79; that the probate was obtained even before the filing of the partition suit in CS 267/86; that in Tr. CS 210/2000, Chandrammal and Govardan had specifically referred to the Will of Andalammal and the grant of probate; that this belated application is filed for revocation of the probate after 21 years; that under the provisions of Indian Succession Act, the applicants are not entitled to seek an order of revocation of probate; that it is only as a counterblast in order to put forward a defence to the suit in TR. CS 210/2000 that the above petition has been filed on knowingly false allegations, and hence, the application No.4656/2000 has got to be dismissed. The learned counsel would further submit that the alleged Will of Devaraja Chettiar dated 26.10.75 is a spurious and fictitious one; that the same is a false and fabricated in a blank paper containing the signature of Devaraja Chettiar; that taking advantage of the signature of Devaraja Chettiar in a blank paper, the plaintiff Sudarsana Narayanan and his brother Nandakumar have filled up the contents of the Will through some person known to them; that it is well settled that the propounder of the Will has to satisfy the conscience of the Court that the alleged will is a true and genuine document, and all the suspicious circumstances have to be clearly explained by the propounder of the Will; that the alleged will is an unregistered one; that there is no explanation as to the non-registration; that due attestation of the will has not been proved; that the attestors are persons not known to Devaraja Chettiar and had no connection with him; that there is no proof that the attestors have attested the alleged Will on 26.10.75 simultaneously seeing the execution of the Will by Devaraja Chettiar; that there is no proof to show that the attestors are not alive and no death certificates have been made available; that after the last line of the contents of the Will, there is enough blank space between the last line and the signature of Devaraja Chettiar, and in order to cover up the same, the word "ippadikku" is used which is very unusual in a Will; that admittedly, there were no disputes between the family members in 1975; that the disputes arose for the first time only in 1978 after the death of Dheenadayalu; that in such a situation, there was absolutely no reason for the testator having written in the so-called Will that there was a partition previously; that this shows that in order to bolster up their false case in CS 267/86, such a recital has been introduced in the Will; that except reference to the eldest son of Dheenadayalu and his sons, there is absolutely no reference to the other sons or daughters of Devaraja Chettiar in the Will; that no reason is given by the testator why he was excluding the daughters or of not giving any property to them; that the Will is therefore, quite unnatural; that there was no occasion for Devaraja Chettiar to go to Cholavaram and write a Will; that the alleged Will is not in the handwriting of Devaraja Chettiar; that he does not know who had written the Will; that the Will is in Tamil; that the name of the scribe is not mentioned; that there is no clause like "This will come into effect after my life time. I reserve my right to execute another Will or modify the terms of this Will during my lifetime." finds place in the alleged Will; that the plaintiff Sudarasana Narayanan has not proved the due execution and attestation of the Will; that Devaraja Chettiar would not have dealt with the entire joint family estate, and this would go to show that he could not have executed the impugned Will; that the plaintiff in TOS 6/2000 has not proved the truth, genuineness, due execution, attestation and the validity of the alleged Will, and hence, the suit in TOS 6/2000 has got to be dismissed.
24. The learned Counsel appearing for the 7th defendant in CS 267/86 and 10th defendant in TOS 6/2000 would argue that the main question involved in CS 267/86 is whether Ex.P2 partition deed is sham and nominal; that sham means for fraudulent purpose; that In Pari Delicto Doctrine is squarely applicable to the present case; that it is pertinent to note that Exs. P1 and P2 are genuine and acted upon sincerely; that nominal means just to satisfy some members and never intended to be taken seriously and acted upon; that there is no evidence to show that these documents were nominal; that sham and nominal would never go together; that it is clear from the evidence both oral and documentary that Ex.P2 partition deed was very much acted upon; that Dheenadayalan in his written statement in CS 38/65 has admitted that Exs. P1 and P2 were bona fide; that a perusal of Ex.P19 counter filed by Dheenadayalan in O.P.263/76 filed for succession certificate, would indicate that he admitted about partition in respect of immovables; that the plaintiffs as defendants in Tr. CS 210/2000 have admitted as having sold E Schedule property under the partition; that there is no question of compulsory sale; that there is no evidence to show that what prevented the plaintiffs from taking steps to set aside the sale under Ex.P9; that Devaraja Chettiar gifted the property at No.14, Telugu Chetty Street to his daughter Chandra and gifted two acres of land at Alinjiwalkkam to his granddaughter Gowri; that F Schedule properties were sold in celebrating the marriages of two unmarried daughters of Devaraja Chettiar; that regarding A Schedule property allotted to Andalammal, she bequeathed the same in favour of Govardan as evidenced by the Will of Andalammal dated 12.7.68; that D Schedule property allotted to Thirumangai was partitioned as evident from Ex.P12; that there is no evidence as to the value of the respective properties in 1964; that the recognized criterian for division has been the productivity and the value of the property and not the extent; that the right of unmarried sisters/daughters in ancestral property is well recognized by courts, and hence, F Schedule property is valid and should be protected; that in any event, the suits should have been filed to set aside Exs. P1 and P2; that if those documents are voidable, they need not be set aside; that suits must have been filed within 3 years from the date of the minors' attaining majority; that the suit filed in 1986, i.e. 22 years after the execution of Ex.P2 partition deed is not maintainable; that the alleged Will of Devaraja Chettiar is a fabricated document by the plaintiff; that the evidence of PW1 coupled with Ex.P1 itself would disprove the alleged Will; that the plaintiff in TOS 6/2000 has not proved the alleged Will as required by law, and hence, the suits in CS 267/86 and TOS 6/2000 have to be dismissed, while Tr. CS 1249/93 has got to be decreed.
25. Regarding C.S. 267/86, Tr. C.S. 210/2000 and Tr. C.S. 1249/93, common evidence was recorded in C.S. 210/2000. The plaintiffs hereinafter would refer to the plaintiffs in Tr. C.S. No. 210/2000 and the defendants hereinafter would refer to the plaintiffs in C.S. 267/86. On the side of the plaintiffs P.Ws. 1 and 2 were examined, and Exs. P1 to P39 were marked. On the side of the defendants D.W.1 was examined, and Exs. D1 to D65 were marked.
26. Admitted facts which are relevant for the purposes of the disposal of the suits can be stated as follows:
Madurai Subbiah Chettiar had two sons named Gopalakrishna Chettiar and Devaraja Chettiar. Gopalakrishna Chettiar died in 1950 leaving behind his wife Andalammal without any issues. Devaraja Chettiar had three sons viz. Dheenadayalu, Narasimhan and Thirumangai, and four daughters viz. Chandra, Saraswathi Rajan, Padma and Manivalli. Ex.D50 is the family genealogy. The plaintiffs in C.S. 267/86 are the wife and sons of Dheenadayalu, the eldest son of Devaraja Chettiar, while the plaintiff in Tr. C.S. 1249/93 is the second son of Devaraja Chettiar. The plaintiffs in Tr. C.S. 210/2000 are the daughter of Devaraja Chettiar and grandson through the eldest son Dheenadayalu. All the properties which are the subject matter of all the above suits originally belonged to Madurai Subbiah Chettiar, who had two sons as stated above. The subject matter of the suit in Tr. C.S. 210/2000 in respect of which the recovery of possession is sought for the plaintiffs therein is the "A" Schedule property annexed to the plaint in the suit for partition in C.S. No. 267/86. The third plaintiff in C.S. 267/86 Sudarsana Narayanan has filed T.O.S. No. 6/2000 seeking for letters of administration alleging that his grandfather Devaraja Chettiar executed an unregistered Will on 26.10.1975. Thus, it would be clear that the prime issue which would solve the controversy between the parties would be whether the release deed dated 16.4.63 marked as Ex.P1 and the partition deed dated 15.7.1964 marked as Ex.P2 were true and acted upon, as contended by the plaintiffs' side or were sham and nominal as contended by the defendants' side.
27. Admittedly, the immovable properties which are the subject matter of all the above suits originally belonged to Madurai Subbiah Chettiar, who had two sons viz. Gopalakrishna Chettiar, who died in 1950 issueless and intestate, leaving behind his wife Andalammal, and the other son Devaraja Chettiar, who had three sons viz. Dheenadayalu, Narasimhan and Thirumangai and four daughters viz. Chandra, Saraswathi Rajan, Padma and Manivalli. Claiming partition in the Schedule of properties annexed to their suit in C.S. 267/86, the defendants though have admitted that their father Dheenadayalu executed Ex.P1 release deed on 16.4.63 and that a partition deed under Ex.P2 was entered into on 15.7.64 among the members of the family, would contend that both the documents were only sham and nominal; that they were brought about just to protect the properties from the creditors; and that those documents were not intended to be acted upon and not actually acted upon. Countering to the same, the learned counsel for the plaintiffs would submit that Dheenadayalu on receipt of consideration has executed Ex.P1 release deed; that by entering into Ex.P2 partition deed, the property left by Madurai Subbiah Chettiar was actually divided by the members of the family; that they got separate possession of the respective shares and they have dealt with, and thus, the documents have actually been acted upon, and hence, the defendants are not entitled for partition.
28. At the outset, it has to be pointed out that the defendants who are questioning Ex.P1 release deed and Ex.P2 partition deed have admitted the execution of Ex.P1 release deed by their father and of Ex.P2 partition deed among the members of the family in respect of the family properties. As could be well seen from Ex.P1 release deed, Dheenadayalu has executed a deed of release on 16.4.63 relinquishing his rights in the family properties. The said document recites that he has done so in consideration of receipt of Rs. 20,000/- from his father Devaraja Chettiar. A registered deed of partition was entered into among the members of the family under Ex.P2 dated 15.7.64 viz. Andalammal, the wife of Gopalakrishna Chettiar, Dheenadayalu and his wife Saraswathi representing her three sons. It has to be pointed out that in the said document under Ex.P2, Dheenadayalu has represented himself, while the first defendant Saraswathi has also represented her minor children.
29. The first and foremost circumstance pointing to the truth and genuineness of the release deed under Ex.P1 and the partition deed under Ex.P2 is that Dheenadayalu, who was the executant of Ex.P1 and one of the parties under Ex.P2 has neither challenged nor questioned the same for a period of 14 years till his life time. On the contrary, the said Dheenadayalu has made admissions as to the above documents in a suit filed by one of the creditors in C.S. No. 38/65, wherein Dheenadayalu was the second defendant, while the other defendants were his sons represented by their mother, first defendant Saraswathi. In his written statement, Dheenadayalu has well admitted that there was no family business; that it was not a trading family; that the oil business was started by him, and it was his own concern; that in view of his share in the family properties, he had taken Rs. 20,000/- and started his own business; that the release deed and partition deed were bona fide and fair; that it was not prepared with an intention to defeat the creditors; and that the other defendants in the said suit had nothing to do with the said business. It remains to be stated that the wife of Dheenadayalu, who is the first defendant herein representing the other defendants, who are seeking partition, has adopted the written statement of her husband. That apart, the second son of Devaraja Chettiar filed O.P. No. 263/76 for the grant of succession certificate in respect of the moneys left by his father. A copy of the order passed and the counter filed by Dheenadayalu in the said O.P. are filed as Exs. P18 and P19 respectively. In the course of his counter affidavit, Dheenadayalu has well admitted as follows:
"This relative submits that in 1964, there was a partition in the family under registered deed dated 15.7.64 between the petitioner and relations Nos. 1 and 2 and their father M.S. Devaraja Chettiar and the minor sons of this relative. Under that document, the immovable properties belonging to the family were alone partitioned, and that too among the male members only. With regard to relations 3 and 4, they had already left the family having been married."
In the face of these candid admissions made by Dheenadayalu in the above proceedings coupled with the fact that he has not questioned the said documents till his death in 1978, it would be futile on the part of the defendants to contend that those documents were only sham and nominal; and that the admissions made by Dheenadayalu were erroneous.
30. The contention of the defendants that those admissions made by Dheenadayalu only for the sake of defence in those proceedings cannot be countenanced. Admittedly, at the time of Exs. P1 and P2, the defendants 2 and 3 were minors, and hence, they are not competent to speak about the circumstances, under which those documents were entered into. It is pertinent to point out that the first defendant, who is the mother of D.W.1, was a party to the partition deed under Ex.P2, representing her minor children. Now she has joined with her other two sons, who were then minors, to brand the said partition as sham and nominal. Hence, she would be the most competent person to speak about the circumstances, under which those documents were entered into, but she has not been examined. It is contended by the defendants' side that due to illness, she could not move about, and hence, she was not examined. Even if the reason put forth by the defendants' side, is true, she could have been well examined by taking out a Commission. It is pertinent to note that the defendants have not examined any one of the family members or relations who could speak about the circumstances which attendant over the said partition arrangement. The plaintiffs have examined P.W.2, Saraswathi Rajan, one of the daughters of Devaraja Chettiar. From her evidence, it could be seen that she was married in the year 1964; that her brother Dheenadayalu executed a release deed; and that the family members entered into a partition deed. She has also deposed that the partition was effected with the help of her elder brother Narasimhan, who was an advocate; that at the time of the partition, all her elder and younger brothers were aware of the value of the properties for partition, and all of them accepted the said partition with consensus; that neither Dheenadayalu nor his wife Saraswathi raised any objection disputing the value of the properties or their respective shares allotted to them; and that it was not correct to state that the partition so effected was nominal, unequal, and was not given effect to. The learned counsel for the defendants brought to the notice of the court that she is the mother-in-law of P.W.1, and hence, her evidence has got to be brushed aside, as interested one. This contention cannot be countenanced for the reason that the plaintiffs are not relying her sole testimony. Taking into consideration of the fact that she was one of the daughters of Devaraja Chettiar; that during the relevant period when partition took place, she was married and now aged 63 years and viewing her testimony from the other evidence available on hand and in the absence of any strong circumstance to disbelieve or reject her evidence, the court is of the view that her evidence is trustworthy and believable. D.W.1 is the third son of Dheenadayalu, who was 2 or 3 years old at the time of the documents under challenge, and hence, his evidence though lengthy, cannot in any way advance the case of the defendants, calling those documents as sham and nominal.
31. Attacking the partition deed, it is contended by the defendants' side that the said partition deed under Ex.P2 was entered into only with a view to protect the properties from the creditors. In view of the available evidence, it has to be necessarily stated that this contention is thoroughly unfounded. There is no material available to show that the debts were incurred by the joint family, or for any joint family business. It has been well admitted in the earlier proceedings by Dheenadayalu that it was his own business, and the debts were incurred by him; and that he started his oil business out of Rs. 20,000/- received by him in consideration of his relinquishment of his rights in the family properties. D.W.1 has categorically admitted that at the time of the partition, the debts that were outstanding, were in respect of Subbarayalu Chetty, Sathyanarayana Chetty and Subbiah Nadar; that the claim of E. Sathyanarayana Chetty, the brother of Subbarayalu Chetty is included in CS 38/65; that as per the records they had, except these creditors, there were no creditors of the family; that apart from the aforesaid three, loans were borrowed under Exs. D55 to D58 documents, and the debts covered under those documents, were discharged even prior to Ex.P2 partition deed, and thus, as per the records, on the date of the partition deed, the debts that were outstanding, were in respect of Subbarayalu Chetty and Subbiah Nadar amounting to Rs. 47,500/- and around Rs. 6,000/-; that on the date of Ex.P2 partition deed, the value of the estate was Rs. 16.50 lacs, and in order to protect the family properties from the above creditors, the partition deed under Ex.P2 was entered into. It is highly improbable and unbelievable that a partition was entered into between the members of the joint family in respect of the family properties worth more than Rs. 16 lacs, in order to protect the family properties from the creditors, to whom Dheenadayalu was liable to pay to an extent of Rs. 51,000/-.
32. Many are the circumstances, pointing to the fact that Ex.P2 partition deed has actually been acted upon. The life interest of Andalammal, wife of Gopalakrishna Chettiar, enlarged into an absolute estate by operation of law and in view of the provisions of the Hindu Succession Act, 1956. Though the half share was available to her in all the properties of the family under Ex.P2 partition deed, she was allotted only "A" Schedule property there under, which is situate in Old No.10, New No.28/29, Selva Vinayakar Koil Street, Old Washermanpet, Madras 21. She has executed a Will in favour of P.W.1 Govardan and his children on 12.7.1968. It is pertinent to note that Devaraja Chettiar and Chandrammal were appointed as executors under the Will. After the death of Devaraja Chettiar, Chandrammal, an executor under the Will, applied for probate of the same in O.P. No. 488 of 1978 and got the Will probated, as evidenced by the certified copy of the order marked as Ex.P3. Andalammal died on 23.3.1973. Thus, in respect of the properties allotted to Andalammal under Ex.P2 partition deed viz. "A" Schedule property, she has executed a Will, and the Will has also been probated by this court.
33. Out of the properties fell to the share of Devaraja Chettiar under Ex.P2 partition deed, viz. "B" Schedule property, he had gifted one of the items viz. Door No.14, Telugu Chetty Street, Washermanpet to his elder daughter Chandra and Jagadeesan under Ex.P10 gift deed dated 6.11.1965 and has gifted two acres of land in Alinjiwalkkam Village to his granddaughter Gowri. D.W.1 has well admitted that his father Dheenadayalu, before his death in 1978, sold number of landed properties in Alinjiwalkkam and Thandalkalani under the sale deeds as found under Exs. P22 to P27, and subsequently, the second defendant Nandakumar has also sold certain extent of lands at Alinjiwalkkam, as found under Exs. P28 to P39. It is not in dispute that all these landed properties which were shown under the sale deeds executed by Dheenadayalu and the second defendant Nandakumar are shown as the subject matter to the partition suit and the alienees have not been impleaded thereto.
34. A perusal of Ex.P2 partition deed would reveal that 'C' Schedule properties were allotted to the second son of Devaraja Chettiar viz. Narasimhan. The earliest among the proceedings between the parties was that of Narasimhan, who filed a suit in O.S. No. 6795/78 on the file of the City Civil Court, which was subsequently transferred to this court and renumbered as Tr. C.S. 1249/93. In his plaint, the said Narasimhan has given his residential address as Door No.26B, Ramanuja Iyer Street, Old Washermanpet, Madras 21, which was allotted to him under 'C' Schedule. Affirming the partition entered into between all the members of the joint family, as evidenced by Ex.P2, he sought for partition of his 1/7th share in the properties of his father Devaraja Chettiar alleging that he died intestate. It is significant to note that the said Narasimhan has filed the said suit for partition immediately after the death of Devaraja Chettiar.
35. Insofar as "D" Schedule property under Ex.P2 partition deed allotted to Thirumangai, the third son of Devaraja Chettiar, a partition was effected under Ex.P12 on 26.3.1980 among the members of Thirumangai's family, wherein one of the items of property was allotted to Thirumangai and the other items were allotted to his wife and two sons.
36. Under Ex.P2 partition deed, the branch of Dheenadayalu was allotted "E" Schedule properties, which they have sold under Ex.P9 sale deed dated 16.6.1984, wherein they have clearly stated that they acquired ownership to the said property only under Ex.P2 partition deed. Having admitted so in the said sale deed under Ex.P9 dated 16.6.84, that too pending all the instant proceedings, it would be a matter of surprise to note that this sale deed was executed under compelling circumstances; and that the admissions by the defendants as to the said partition, were of erroneous in nature. It is pertinent to note that though the defendants have included in their partition suit the immovable properties sold under Ex.P9 in "E" Schedule, they have not included the alienees as parties to this partition suit. No doubt, the dealing of "E" Schedule properties by the defendants would operate as estoppel against them from claiming partition.
37. According to Ex.P2 partition deed, some of the immovable properties mentioned in "F" Schedule there under were reserved for the marriage expenses of the two unmarried daughters of Devaraja Chettiar viz. Padma and Manivalli. It is an admitted position that their marriages had taken place in 1964 and 1967 respectively, as evidenced by the marriage invitations marked as Exs. D39 and D40 respectively, and the "F" Schedule property was sold by Devaraja Chettiar under Ex.P17 on 14.11.1968, i.e. after their marriages. But, it remains to be stated that the "F" Schedule property was sold under Ex.P17 in 1968 for the discharge of the debts incurred by Devaraja Chettiar towards the marriage expenses of his two daughters. It has to be necessarily pointed out that the immovable properties in "F" Schedule have not been shown as the subject matter to the partition suit.
38. Evidence is available to show that all the three sons of Devaraja Chettiar viz. Dheenadayalu, Narasimhan and Thirumangai were living separately subsequent to Ex.P2 partition deed. The contention of the defendants' side that Dheenadayalu and his family members were all along living in door No.28/29, Selva Vinayakar Koil Street has got to be rejected, in view of Exs. P20 series and P21 series, bona fide certificates and transfer certificates respectively, wherein the address of the defendants are shown as Janapam Chattiram, Cholavaram. It is admitted by D.W.1 that himself and his brothers studied in a School at Cholavaram in 1972 and 1973, and his father filed applications for admitting them into the School.
39. The contention of the defendants' side that Devaraja Chettiar has agreed and offered the family properties in C.S. No. 38/65; that the fact that the claim petition filed by Andalammal claiming title to the property allotted to her under the partition deed in order to raise attachment was dismissed, and the same has become final would clearly reveal that the partition under Ex.P2 was only sham and nominal cannot be countenanced. Even from the admissions made by Dheenadayalu Chettiar in the said proceedings, the debts in respect of which the said suit was filed, were incurred by him for his business, and it was not a joint family business. From the available records pertaining to the said proceedings, it would be clear that the creditor has filed the suit against all the members of the joint family and has sought the attachment of the joint family properties. No doubt, those circumstances would have definitely necessitated Devaraja Chettiar agreeing to pay the creditors. It is quite evident from the available documentary evidence that he has paid also. The dismissal of the claim petition filed by Andalammal in the proceedings filed by a third party, will be of no legal consequence, and hence, the defendants cannot be permitted to say that the partition that was entered into between the parties under Ex.P2 was only sham and nominal.
40. Much reliance was placed upon the property tax receipts under Exs. D27, D28, D29 and D41 and electricity cards and bills under Exs. D30 and D31. It is contended by the defendants' side that the properties were under the direct control and management of Devaraja Chettiar till his life time, and the same would indicate that the partition under Ex.P2 was only a make belief affair. In view of the ample and acceptable evidence that the partition entered into by the members of the joint family including the defendants who now seek for partition, has been actually acted upon, and on allotment of the respective shares, they got into possession and dealt with the respective properties. It would be quite evident that the parties have not taken steps to have mutation in the revenue and electricity board records. Had it been true that there was no partition, as found under Ex.P2 partition deed and as contended by the defendants, the respective sharers would not have entered into number of transactions, thereby conveying their interest over their respective shares to third parties also. The available evidence would go to show that after the partition was effected under Ex.P2, the members of the joint family started dealing with the joint family properties as if they were their separate properties.
41. It is contended by the defendants' side that they have always resided in the house property situated in Door No.28/29, Selva Vinayakar Koil Street. In order to substantiate the same, they relied on Ex.D2 School Hostel fee receipt for P.W.1, Exs. D5 series, D6 and D7 mess bills of PW1 sent to Dheenadayalu for the period 1973 to 1976, Exs. D8 to D12 money order coupons for the moneys sent by Dheenadayalu to PW1, Exs. D13 to D15 money order coupons for the moneys sent by the second defendant Nandakumar to PW1, Exs. D1 and D17 to d21, letters sent by PW1 to Dheenadayalu and Nandakumar to the said address, Ex.D24 radio licence dated 6.10.76 in the name of the second defendant, and Exs. D25 and D26 notice issued by the Corporation of Madras for the building violation in respect of 28/29, Selva Vinayakar Koil Street and the receipt for the penalty paid by Dheenadayalu. Concededly, the house property situate in Door No.28/29, Selva Vinayakar Koil Street originally belonged to Madurai Subbiah Chettiar, which devolved upon the members of the joint family, and all the joint family members were residing there. It is not the case of the defendants that Andalammal, wife of deceased Gopalakrishna Chettiar was living away from the said property. The statement of PW1 that he was brought up by Andalammal is not disputed by the defendants. There is evidence to show that subsequent to the partition, Dheenadayalu, his wife and his other children were residing at Cholavaram for a few years. All these documents would indicate that Dheenadayalu and his family members have been residing at 28/29, Selva Vinayakar Koil Street, after shifting the residence from Cholavaram. The plaintiffs have also not disputed this fact. The defendants whose possession of the said property cannot, but be permissive under the stated circumstances, cannot be permitted to take undue advantage of such possession to question the validity of the earlier partition entered into between the family members.
42. Once it is proved by sufficient and acceptable evidence that a complete partition has taken place between the parties, the subsequent suit between the same parties cannot be maintained except on the ground of fraud or mistake vitiating the allotment of properties. In the instant case, there is available evidence indicating the complete partition of the joint family properties. It is not the case of the defendants that they have come forward seeking partition again on the ground of fraud or mistake. The mere fact that the shares are not absolutely equal to or are not strictly in accordance with law would be no ground for reopening a partition which has been assented to by the members of the family on the basis that it is a just and equitable arrangement having regard to all the circumstances of the family. So long as there is no fraud, unfair dealing, or overreaching by any of them against another or others and in the case of a partition which is not open to attack on any such ground, even the minor sons of each coparcener who was a party to the arrangement would be bound by the same. In the instant case, the partition has been entered into by all the adult members of the joint family, and the defendants 2 and 3 were represented by their mother as guardian. The husband of the first defendant and the father of the defendants 2 and 3 was also a party to the partition. Under such circumstances, it is not open to the defendants to challenge the validity of the partition, except where they come with a specific allegation and proof showing that there has been fraud vitiating the transaction and resulting in inequity. It has to be stated that the mere fact that outwardly or apparently the shares appear to be unequal was no ground for reopening the partition at the instance of the minor sons of an adult member who was a party to the partition. The defendants though have averred that a partition that was entered into between the members of the joint family in the year 1964 was unequal and inequitable, have not placed any proof as to the valuation of the properties at that time. D.W.1 has well admitted that the valuation of the property given by them is their own estimation. It is not their case that D.W.1's father Dheenadayalu and his mother Saraswathi, the first defendant herein colluded with the members of the family, acted against their interest, and thus, they have been deprived of the allotment in the family properties. The Court may hasten to say that the defendants have not filed the suit for setting aside the earlier partition or for reopening the partition under Ex.P2, but have asked for partition of the Schedule properties, in respect of which the partition was effected under Ex.P2 partition deed in the year 1964 and affirmed by Dheenadayalu in the earlier proceedings. For the reasons stated and discussions made above, it has got to be necessarily found that Ex.P1 release deed and Ex.P2 partition deed are true, genuine and acted upon. The contention of the defendants' side that these documents are sham and nominal is unfounded and devoid of merits. It can be well stated that the defendants in view of all the above, cannot even maintain a suit for partition again in respect of the very same properties. Thus, the defendants are not entitled for the partition as asked for in their suit. Since the allotment of 'B' Schedule properties to the defendants' branch is not questioned by the other members of the joint family in these proceedings, no question of allotting 'B' Schedule properties again to the defendants would arise.
43. The plaintiffs have come forward with the suit for recovery of possession alleging that the defendants are in permissive possession of the suit property. The defendants have contested the said suit for recovery of possession stating that they were in their own right; and that they were entitled to the share, since the partition deed under Ex.P2 was sham and nominal. Since it has been found that the partition entered into between the parties under Ex.P2 was true, valid and acted upon and not sham and nominal, they have no defence to resist the claim of the plaintiffs seeking recovery of possession. Since the defendants have not proved any other capacity under which they are in possession and their claim for partition is also negatived, their possession has got to be construed one as unlawful, and hence, the plaintiffs are entitled for recovery of possession. Before filing the suit, the plaintiffs have issued a notice under Ex.P5 to the defendants 5 to 11 who are the tenants, terminating the tenancy. The notice sent to the 11th defendant was returned, as evident from Ex.P7. Acknowledging the said notice, the defendants 5 to 10 have questioned the title of the plaintiffs under Ex.P8 reply notice. Hence, those tenants have also been arrayed as defendants 5 to 11. The court is of the view that the plaintiffs are entitled to a decree for possession against the defendants 5 to 11 also.
44. Admittedly, the second defendant was appointed as receiver and he has been collecting rents from the old tenants and new tenants. It is not disputed that he has been depositing Rs. 6,000/- per month to the credit of Tr. C.S. 210/2000. Therefore, the second defendant receiver has to render accounts in respect of the rental collections made by him within a period of three months here from.
45. O.S. No. 6795/78 on the file of the City Civil Court was transferred and renumbered in this court as Tr. C.S. 1249/93. The plaintiff Narasimhan is the second son of Devaraja Chettiar. He has filed the said suit for division of "A" to "D" Schedule properties annexed to the plaint and to allot him 1/7th share there under. On filing of the written statement by the contesting defendants, the necessary issues were framed. During the pendency of the suit, the plaintiff Narasimhan filed I.A. No. 5491/92 seeking permission of the Court to withdraw the said suit. Pending the application, the defendants 4 and 5 filed an application under Order 23 Rule 1A of C.P.C. stating that they should be permitted to transpose them as plaintiffs, and the same was numbered as I.A. No. 5490/92. During the pendency of the application seeking permission to withdraw the suit Narasimhan died on 11.3.98. Admittedly, no steps were taken to implead the legal representatives of the deceased Narasimhan in that suit, and thus, the suit has become abated in the year 1998 itself. In view of the abatement of the suit, the application for withdrawal has also become abated, and consequent upon the same, the application seeking transposition has to be closed as infructuous. Except the first issue in CS 267/86, which has been dealt with in TOS 6/2000, all the issues in CS 267/86, Tr. CS 210/2000 and Tr. CS 1249/93 and Additional issues in Tr. CS 1249/93 are answered accordingly.
46. ISSUES 1 TO 3 IN TOS 6/2000: The plaintiff Sudarsana Narayanan has come forward with a request in T.O.S. 6/2000 to issue letters of administration alleging that his grandfather Devaraja Chettiar, who died on 7.12.1975, executed his Last Will and Testament at Cholavaram Village on 26.10.75. The contesting defendants have stated that it is true that the said document contains the signature of Devaraja Chettiar; and that the alleged Will is a fabricated one by filling up the blank paper containing the signature of Devaraja Chettiar with the help, connivance and collusion of the persons known to the plaintiff. The alleged Will of Devaraja Chettiar is marked as Ex.P1 in this suit. In order to prove the testament, the plaintiff has examined himself as P.W.1 and Jambunathan, son of one of the attesting witnesses viz. Ramasamy Iyer as P.W.2. P.W.1 has candidly admitted that he had no knowledge about the execution of Ex.P1 Will or also its attestation. The signature of Devaraja Chettiar under Ex.P1 is not disputed by the contesting defendants. According to the propounder, both the attesting witnesses are no more. It is true that PW2 has identified the signature of his father as one of the attesting witnesses to Ex.P1 Will. P.W.2 has well stated that he did not know how his father was acquainted with Devaraja Chettiar nor had he knew under what circumstances, where and when his father signed Ex.P1 document. So far as the second attesting witness is concerned, there is no material available before the court proving that he was no more. Thus, it cannot be stated that the execution and attestation of the document have been proved according to law.
47. Many are the suspicious circumstances attendant on Ex.P1 document. It is the specific case of the plaintiff that during the relevant period, Devaraja Chettiar was residing in door no.28/29, Selva Vinayakar Koil Street. But Ex.P1 document reads that during the relevant time, the testator was residing at Cholavaram Village. Admittedly, the said document is a handwritten one and in Tamil language. It is significant to note that there is no mention as to who prepared the document or who was the scribe of the document. That apart, the document does not contain the details or description of any properties both movable and immovable. It is an admitted position that Devaraja Chettiar has got very good court experience by participating in several litigations. Had he really intended to prepare a Will, he would have well sought the assistance of legal profession and prepared the same. The said Will is an unregistered one. It is pertinent to note that Devaraja Chettiar was an executor under the Will executed by Andalammal on 12.7.68, and the same was also a registered one. As rightly pointed out by the learned Counsel for the contesting defendants that after the last line of the contents in the Will, there is enough blank space, and in order to cover up the same, the word "Ippadikku" is used, which is very unusual in a Will. The said document more looks like a letter than in the form of a Will. This itself would clearly indicate that an experienced litigant like Devaraja Chettiar would not have signed, after the contents were filled up. But, a blank paper containing his signature would have been filled up so as to look like a Will.
48. It is not in dispute that there was no quarrel among the family members in respect of the properties in 1975. Even in 1978 before the filing of the suit for recovery of possession by the plaintiffs in respect of the property in Door No.28/29, Selva Vinayakar Koil Street, there was no dispute between the parties. Under such circumstances, it would be highly improbable and unbelievable that Devaraja Chettiar who was a party to the partition deed had executed such a Will, since there was no necessity at all. Except his son Dheenadayalu and his sons, not even a reference has been made in respect of his other sons and daughters. There were no reasons or compelling circumstances for Devaraja Chettiar to exclude the other sons, grandsons and four daughters, and the same, no doubt, would adumbrate the document as unnatural. P.W.1 has well admitted that the said Ex.P1 document is not in the handwriting of Devaraja Chettiar, and he did not know by whom the same was written. The name of the scribe is not mentioned there under. It has to be noted that the said document does not contain the clause that "the will would come into force after his life time, and he has reserved his rights to execute another will or modify the terms of the will during his life time." One of the strong circumstances, which would indicate the falsity of the Will, was that the testator Devaraja Chettiar who was a party to the partition that took place in the year 1964, would not have written a Will stating that all the properties belonging to the joint family were bequeathed to his son Dheenadayalu and his sons to the exclusion of daughters.
49. Yet another strong circumstance which throws himalayan suspicion over Ex.P1 Will is the enormous and inordinate delay in filing the petition. It is averred in the plaint that only in or about the third week of February 1989 when the plaintiff was looking into some old papers, he casually got Ex.P1 Will; that after going through the same, they felt that his grandfather had given properties to his sons who were normally entitled to and has not given to his daughters, probably as he felt that they had already been sufficiently provided earlier and they had been married well by giving sufficient jewels etc.; that apart from that, they were searching for the attesting witnesses to got their affidavits, and thus, the delay was caused. Ex.P1 Will is dated 26.10.1975, and Devaraja Chettiar died in the year 1978. Admittedly, during the relevant period, Devaraja Chettiar was living with the family members, and hence, he could not have prepared or executed a Will without the knowledge of the family members, who were large in number. Even according to the plaintiff, Ex.P1 Will came to his hand in the second or third week of February 1989, but has filed the O.P. for letters of administration only in the year 1995. The explanation tendered by the plaintiff for the delay is neither convincing nor acceptable.
50. The Apex Court has held in a decision (GURDIAL KAUR AND OTHERS VS. KARTAR KAUR AND OTHERS) thus:
"The law is well stated that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925, but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel suspicious circumstance."
Applying the above test given by the Apex Court, the court is of the view that the plaintiff has not satisfied the conscience of the court. It has to be necessarily held that the plaintiff has failed to dispel the so-called suspicious circumstances and also to prove Ex.P1 document as required by law. Therefore, the plaintiff is not entitled to the relief as asked for. The issues 1 to 3 are answered accordingly.
51. Insofar as O.A. No. 4656/2000, the same has been filed by the defendants seeking revocation of the probate issued by this Court on 13.3.1979 in respect of the registered Will executed by Andalammal on 12.7.68 bequeathing "A" Schedule property to P.W.1 for life and vesting the remainder to his children on different grounds. A perusal of the affidavit filed in support of the application would reveal that the first applicant Nandakumar has sworn to the said affidavit. It is pertinent to note that the first applicant was 10 years old at the time of the execution of the alleged will. He has not been examined. Admittedly, the said Will in respect of which probate was issued by this court at the instance of one of the executors Chandrammal, was executed by Andalammal on 12.7.68, and the testatrix died on 23.3.73. The other executor Devaraja Chettiar who was the grandfather of the applicants 1, 3 and 4 also died in the year 1975. Significant it is to note that among the applicants, the second applicant Saraswathi aged more than 60 years, was competent to speak about the facts and circumstances, but she has not been examined. After the grant of probate, the executor and the beneficiary under the Will have demanded delivery of possession on the applicants. The denial of the same has resulted in C.S. 446/79 on the file of this court, and subsequently it was transferred to the City Civil Court and renumbered as O.S. No. 2612/81. Again the same was retransferred to this court and taken as C.S. 619/84. Once again the same was transferred to the City Civil Court and assigned a new number in O.S. 3369/98. On being transferred to this Court for joint trial, it has been renumbered as Tr. C.S. 210/2000. 52. The contention of the applicants that they came to know about the probate proceedings only in the year 2000 has got to be rejected, in view of the fact that even in their suit for partition in C.S. 267/86, they have mentioned about the Will of Andalammal dated 12.7.68, the death of Andalammal on 23.3.73 and the probate obtained by Andalammal on 13.3.79. The instant application for revocation of the probate has been filed after a period of 14 years. Any amount of explanation for such an inordinate delay, in view of the pendency of all the proceedings between the same parties, would be of no avail. The intention of the applicants to drag on the proceedings in Tr. C.S. 210/2000 is patent. That apart, the application is a clear abuse of process of law. The Court is of the view that the applicants are not entitled to the relief as asked for, and the application has got to be dismissed.
53. In the result, Tr. C.S. 1249/93 is dismissed as one abated.
54. In the result, the plaintiffs in Tr. C.S. 210/2000 are given a decree for recovery of possession from the defendants therein along with the following reliefs. Time for delivery is two months here from. The plaintiffs are entitled for Rs. 2,000/- towards past mesne profits from the defendants 1 to 4, Rs. 400/- per month from the date of plaint till this date and Rs. 2,000/- per month rent from the date of decree till the date of delivery of possession. The claim of mesne profits as against the defendants 5 to 11 is rejected. The 2nd defendant receiver is directed to render accounts in respect of the rental collections made by him within a period of three months here from. The defendants 5 to 11 are directed to deposit the existing monthly rental into the Court to the credit of Tr. C.S. 210 of 2000 till delivery of possession. There shall be no order as to the costs.
55. In the result, C.S. 267/86 is dismissed, leaving the parties to bear their own costs. Consequently, O.A.231/2000 and A. No. 2802/02 are also dismissed.
56. In the result, T.O.S. 6/2000 is dismissed, leaving the parties to bear their own costs.
57. In the result, O.A. No. 4656/2000 is dismissed.