Madras High Court
Pavunambal vs Shanmugam ... 2Nd Plaintiff/Appellant on 9 April, 2012
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.04.2012
CORAM
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
S.A.Nos.1751 & 1752 of 2004
S.A.No.1751 of 2004:
1.Pavunambal
2.Mangaiarkarasi ... Defendants 2 & 3 /
Respondents 1 & 2/Appellants
Vs.
1.Shanmugam ... 2nd Plaintiff/Appellant
2.Senapathy
3.Pothanathan
4.Punniakotti
5.Somasundaram
6.Tamilmani
7.Lakshmi Ammal
8.Rajambal ... Defendants 4 to 10/
Respondents 3 to 9/Respondents
S.A.No.1752 of 2004:
1.Pavunambal
2.Mangaiarkarasi ... Defendants 2 & 3 /
Respondents 2 & 3/Appellants
Vs.
1.Senapathy
2.Pothanathan
3.Punniakotti
4.Somasundaram
5.Tamilmani ... Defendants 4 to 8/Appellants
6.Shanmugam ... 2nd Plaintiff/1st Respondent
7.Lakshmi Ammal
8.Rajambal ... Defendants 9 & 10/
Respondents 4 & 5/ Respondents
Prayer in S.A.No.1751 of 2004: This Second Appeal is filed against the Judgment and Decree dated 25.06.2002 made in A.S.No.117 of 2001 on the file of the Learned Principal District Judge, Chengalpattu, reversing the Judgment and Decree dated 20.06.2001 made in O.S.No.103 of 1998 on the file of the Subordinate Court, Madurantakam.
Prayer in S.A.No.1752 of 2004: This Second Appeal is filed against the Judgment and Decree dated 25.06.2002 made in A.S.No.18 of 2002 on the file of the Learned Principal District Judge, Chengalpattu, reversing the Judgment and Decree dated 20.06.2001 made in O.S.No.103 of 1998 on the file of the Subordinate Court, Madurantakam.
For Appellants (in both the S.As) : Mr.M.S.Subramanian
For Respondents 2 to 6 in S.A.No.1751/2004: Mr.NEA.Dinesh
and Respondents 1 to 5 in S.A.No.1752/2004 for M/s.V.Nicholas
For Respondent 1 in S.A.No.1751/2004 & : Mr.C.Sanjay Babu
Respondent 6 in S.A.No.1752/2004
For Respondents 7 & 8 (in both the S.As) : Mr.N.Vijaya Kumar
C O M M O N J U D G M E N T
The Appellants/Defendants 2 and 3 have projected these Second Appeals as against the Judgment and Decree dated 25.06.2002 in A.S.No.117 of 2001 passed by the Learned Principal District Judge, Chengalpattu and also, as against the Judgment and Decree dated 25.06.2002 in A.S.No.18 of 2002 passed by the Learned Principal District Judge, Chengalpattu, in reversing the Judgment and Decree dated 20.06.2001 in O.S.No.103 of 1998 passed by the Learned Subordinate Judge, Madurantakam.
2.The plaint scenario:
(i)In the plaint, the 2nd Plaintiff has averred along with the 1st Plaintiff (since deceased) that the 1st Defendant (later deceased) and his two sons viz., the 2nd Plaintiff Shanmugam and Panchatcharam constituted a joint family. The 1st Defendant (since deceased) was the joint family Manager. He and his brother Vadivel sold their ancestral lands at Vilvarayanallur Village, Madurantakam Taluk and shared the Sale Proceeds equally as between them. Out of such Sale Proceeds, the 1st Defendant purchased the Suit Items 1 to 5 properties as per the Sale Deeds dated 26.09.1966 and 09.07.1971. Therefore, the Suit Properties Items 1 to 5 are also the ancestral joint family properties. The Suit Items 6 & 7 are the ancestral Gramanatham site and a tiled house are the joint family properties of the 1st Defendant, 2nd Defendant and the deceased Panchatcharam. After the demise of Panchatcharam, the Defendants 2 and 3 (Appellants in both the Second Appeals) along with the 1st Plaintiff have become his heirs. The Defendants 2 and 3 filed the Maintenance Suit in O.S.No.345 of 1990 on the file of the Learned District Munsif, Madurantakam, by bringing the Suit properties Items 1 to 5 for sale in E.P.No.145 of 1992 and the sale has been posted to 20.12.1993. According to the Plaintiffs, any such Maintenance Decree will not bind the share of the Plaintiffs in respect of the suit property. Several attempts for amicable partition and division of the suit properties failed due to the hostile attitude of the Defendants 2 and 3. As such, the Plaintiffs have laid the Suit for partition of all the suit properties.
(ii)In law, the 1st Defendant is entitled to 3/9th share, 1st Plaintiff is entitled to 1/9th share, 2nd Plaintiff is entitled to 3/9th share, 2nd Defendant is entitled to 1/9th share, 3rd Defendant is entitled to 1/9th share. The Plaintiffs have filed the Suit for partition of their 4/9th share in the suit properties.
(iii)The 1st Defendant Manickam Mudaliar died on 17.12.1994. The Defendants 4 to 8 are his legatees and the Legal Representatives of the deceased 1st Defendant claiming under the registered Will dated 05.03.1990 have been impleaded as Legal Representatives of the deceased Manicka as per the order in I.A.No.9 of 1999 dated 04.08.1999. The Defendants 9 and 10, who are the sisters of the 2nd Plaintiff and daughters of the 1st Plaintiff, are impleaded as per the order in I.A.No.395 of 1999 dated 06.10.1999, claiming themselves as Legal Representatives of the deceased 1st Plaintiff and for effective adjudication.
(iv)Under the circumstances, the Plaintiffs have prayed for passing of a decree in their favour for partition of the suit properties in 9 shares and allot 4 such shares to them, for appointment of an Advocate Commissioner to divide the suit properties into 9 shares and allot 4 shares to them and for ascertainment of income from the date of plaint.
3.The written statement pleas of 2nd Defendant:
(i)The present Suit has been filed by the 1st Defendant (Manicka) through the Plaintiffs to escape from the Maintenance Decree. But the 2nd Defendant filed a Suit for Maintenance viz., O.S.No.345 of 1990 on the file of the Learned District Munsif, Madurantakam, which has been decreed as prayed for. The properties have been brought for sale. At the time of sale only, this Suit has been filed. The 1st Defendant filed an Appeal in A.S.No.61 of 1992 before the Learned Additional Subordinate Judge, Chengalpattu and the same has been dismissed. Being aggrieved of the same, the 1st Defendant (later deceased) has set up the Plaintiffs to file the present Suit. She does not know the exact particulars of the family properties. Therefore, she was unable to file a Suit for partition. However, she filed a Suit for maintenance. At the time of the death of her husband Panchatcharam, the 3rd Defendant viz., her daughter was only 85 days child. She was not allowed to reside in the matrimonial house and she was driven out. Both the 2nd and 3rd Defendants were not at all looked after by their in-laws. Therefore, she filed a Suit for maintenance. The Plaintiffs and the 1st Defendant at any time they were not amicable for partition. Since the properties were in danger, they filed the present Suit.
(ii)The suit for partition is not maintainable without adding of all the joint family properties. There are movables, which are also to be shared. The family possessed 40 sovereigns of gold jewels, two wooden bureaus, paddy storing box, rice storing box and other utensils, one Gramanatham site also not been included in the plaint schedule. Therefore, the Suit is bad for partial partition. The Maintenance Decree is to be satisfied, then only the partition can be effected. She is also entitled to the past and future profits at the rate of Rs.6,000/- per annum for the share of the Defendants 2 and 3. The Plaintiffs and the 1st Defendant have not paid any amount to the Defendants 2 and 3. The share worked out in the plaint is incorrect.
(iii)The suit properties are not properly valued. The Court Fee paid is incorrect.
(iv)The 1st Defendant has filed an Appeal against the Maintenance Decree. At present, the maintenance amount due is more than Rs.20,000/-. There is absolutely no merit in the Suit and the same may be dismissed with costs.
4.The written statement pleas of 3rd Defendant:
(i)The 2nd Defendant in the Suit is her mother. She and her mother are the Legal Heirs of late Panchatcharam, who is the son of the 1st Defendant and 1st Plaintiff and brother of the 2nd Plaintiff. The Plaintiffs have filed the present Suit to evade payment of Maintenance Decree amount due to her as well as the 2nd Defendant, in O.S.No.345 of 1990. The Maintenance Decree has been filed against the Plaintiffs in O.S.No.277 of 1993 on the file of the Learned Principal Subordinate Judge, Chengalpattu (renumbered as O.S.No.103 of 1998 on the file of the Learned Subordinate Judge, Madurantakam). In O.S.No.345 of 1990, the 3rd Defendant is the 2nd Plaintiff on the file of the Learned District Munsif, Madurantakam. The Decree is yet to be fully satisfied. The Plaintiffs and the 1st Defendant never obeyed the Decree even after the direction given by the High Court at Madras as well as by this Court. A.S.No.61 of 1992 filed against the Judgment and Decree in O.S.No.345 of 1990 has been dismissed and the Plaintiffs herein have not been paid a single paise as maintenance to her till date. They wanted to drag on the Execution Proceedings pending before the Learned District Munsif, Madurantakam in E.P.No.145 of 1992 in O.S.No.345 of 1990. In order to save the properties from Execution Proceedings, the present Suit has been filed.
(ii)The Plaintiffs are bound to pay the maintenance due to her as per law and as per Decree passed in O.S.No.345 of 1990. The share, worked out by the Plaintiffs in the plaint is incorrect. Before the Decree of the partition, the Maintenance Decree in O.S.No.345 of 1990 could be fully satisfied by the Plaintiffs. The Plaintiffs should comply with the Decree first. There is no cause of action for the Plaintiffs to file the present Suit.
5.The written statement pleas of the 5th Defendant (Adopted by Defendants 4, 6 to 8):
(i)The 1st Defendant viz., Manicka is the paternal grandfather and Defendants 4, 6 to 8 have 1/3rd share in the suit properties. The suit properties are the joint family properties of Manicka and his two sons Shanmugam, 2nd Plaintiff and deceased Panchatcharam. The 1st Defendant, as per Will dated 05.03.1990, bequeathed his 1/3rd share in the suit properties to him and Defendants 4, 6 to 8. The Will has been duly executed in sound state of mind and adopted by the 1st Defendant and attested by respectable persons viz., 1)T.K.Elumalai, 2)Ambalavana Mudaliar, 3)Annamalai Chettiar.
(ii)The Will dated 05.03.1990 was written by Radhakrishnan of Perunkaranai Village. The 1st Defendant, Manicka died on 17.12.1994. The Will dated 05.03.1990, executed by the 1st Defendant to Defendants 4 to 8 was acted upon and came into force on the demise of Manicka . The Defendants 4 to 8 are in possession and enjoyment of their 1/3rd share in the suit property, cultivating the same. He and other Defendants 4, 6 to 8 are entitled to 1/3rd share in the suit property and they are entitled to the Preliminary Decree for partition of this share. He and other Defendants 4, 6 to 8 have paid a Court fee of Rs.100/- and prayed for a Preliminary Decree for their 1/3rd share in the property.
6.The written statement pleas of 9 & 10 Defendants:
Panchatcharam, predeceased the 1st Defendant, Manicka and the 1st Defendant expired during the year 1997. As per Hindu Law of Succession, the mother of the 9th Defendant Muthammal (1st Plaintiff in O.S.No.103 of 1998) is entitled to 1/3rd share in the share of the deceased Panchatcharam, since Panchatcharam died intestate. After the lifetime of Panchatcharam, the father of the Defendants 9 & 10 viz., 1st Defendant, Manicka was managing the joint family property. Since the mother of the Defendants 9 & 10 viz., 1st Plaintiff Muthammal died intestate, Defendants 9 & 10 are entitled to succeed to the 1/3rd share of Muthammal that would have fallen to her share. On the death of Panchatcharam, since the Defendants 9 & 10 are Class-I Legal Heirs of Muthammal, as per law, the Defendants are each entitled to 1/9th share of the deceased Muthammal. Therefore, they pray for grant of 2/18th share to them in the suit properties.
7.The First Appellate Court viz., the Learned Principal District Judge, Chengalpattu, while allowing the Appeals on 25.06.2002, has, among other things observed in paragraph-21 of the common judgment that the Appellant in A.S.No.117 of 2001/Plaintiff is entitled to 13/36th share in the suit properties and the Appellants in A.S.No.18 of 2002/Defendants 4 to 8 are put together entitled to 1/3rd or 12/36th share and the Defendants 9 and 10 are each entitled to 1/36th share, while the Defendants 2 and 3 put together are entitled to 9/36th share in the suit properties and as such, the Defendants 4 to 8, who have paid the court fees for the allotment of share is also entitled for a Preliminary Decree and consequently, allowed both the Appeals by setting aside the Judgment and Decree of the trial Court passed in the main Suit in O.S.No.103 of 1998. Further, it passed a Preliminary Decree allotting 13/36th share of the Appellant in A.S.No.117 of 2001 (2nd Plaintiff) and allotting 12/36th share of the Appellants in A.S.No.18 of 2002 (Defendants 4 to 8) in the suit properties as prayed for.
8.Before the trial Court, necessary issues have framed, in the main suit, for determination. On the side of the Plaintiffs, witnesses P.Ws.1 to 3 have been examined and Exs.A.1 to 5 have been marked. On the side of the Defendants, witnesses D.Ws.1 to 5 have been examined and Exs.B.1 to 4 have been marked.
9.The trial Court, upon an analysis of the entire oral and documentary evidence available on record, has come to a categorical conclusion that the Will dated 05.03.1990 is an invalid one and held that the 2nd Plaintiff is entitled to 19/36th share, 2nd and 3rd Defendants are entitled to 15/36th share, 9th Defendant is entitled to 1/36th share, 10th Defendant is entitled to 1/36th share and also, held that Defendants 4 to 8 are not entitled to get any share in respect of the suit properties. Finally, it granted liberty to the 2nd Plaintiff, Defendants 9 and 10 to file a Suit and claim separate possession of their share by including the 2nd Plaintiff, 1st Defendant and deceased Panchatcharam's joint family movable and immovable properties and dismissed the Suit for seeking the relief of partial partition. Since the present Suit has been filed against Defendants 2 & 3, in order to defeat the Maintenance Decree passed in the main Suit in O.S.No.345 of 1990 on the file of the Madurantakam District Munsif Court, the 2nd Plaintiff and Defendants 4 to 8 are directed to bear the costs of Defendants 2 & 3.
10.At the time of the Admission of the Second Appeal, this Court has formulated the following substantial questions of law:
(1)Whether the Decree for maintenance will get merged into the right to obtain a share in the joint family property?
(2)Whether the Will has been proved as required by law when admittedly, the signatures in the Will do not tally with the admitted signatures in the vakalat filed in the Suit?
The Contentions, Discussions and Findings on substantial questions of law 1 and 2:
11.According to the Learned Counsel for the Appellants/ Defendants 2 and 3, the First Appellate court has committed an error in allowing both the Appeals A.S.No.117 of 2001 and A.S.No.18 of 2002 by reversing the well considered Judgment and Decree of the trial Court in O.S.No.103 of 1998 dated 20.06.2001.
12.The Learned Counsel for the Appellants/Defendants 2 and 3 urges before this Court that the First Appellate Court has gone wrong in holding that the rights of the Appellants/Defendants 2 and 3 to claim maintenance got merged in the right to seek for partition, admittedly obtained a Decree and proceeded with the execution.
13.Advancing his arguments, the Learned Counsel for the Appellants/Defendants 2 and 3 contends that the First Appellate Court has failed to render any finding as to the availability of the other properties for partition. In the absence of any finding as to the availability of the other properties, especially, the movables and therefore, it could not be held that the Suit is maintainable.
14.The Learned Counsel for the Appellants/Defendants 2 and 3 projects an argument that the right to claim maintenance has fructified into a Decree and the amounts due under the Decree are recoverable from the Judgment Debtor. Further, inasmuch as the Decree obtained in O.S.No.345 of 1990 is a Maintenance Decree and so long as joint family properties continues in the possession and enjoyment of a Judgment Debtor and on his death, his Legal Representatives, who succeeded to his estate and who are in admitted possession and suit properties, are liable to satisfy the same.
15.The Learned Counsel for the Appellants/Defendants 2 and 3 contends that the First Appellate Court should have seen that the House site purchased in the year 1975 by Manicka has been only in his capacity as Kartha and as Manager of the family and when he has sold the property during the year 1977, the sale cannot bind the coparcener, unless, it is for family necessity and binding purpose.
16.That apart, the Learned Counsel for the Appellants/ Defendants 2 and 3 submits that the First Appellate Court has incorrectly held that even assuming the properties to be joint family properties, the purchaser would have acquired the title by adverse possession. Moreover, other than the said house site, there have been other movable properties also, which have not been divided and the Suit for partial partition ought to have been held as bad and not maintainable.
17.The Learned Counsel for the Appellants/Defendants 2 and 3 contends that the First Appellate Court has not properly appreciated the evidence of D.W.2, the attestor of Ex.B.1 Will and D.W.3, as to the execution and attestation of Ex.B.1 Will.
18.Apart from the above, the Learned Counsel for the Appellants/Defendants 2 and 3 submits that the First Appellate Court has failed to appreciate the evidence of D.W.2 and has stated that the admitted signature of Manicka in the vakalat differs from the signature of Manicka found in the Suit Will in every letter.
19.The stand taken by the Appellants/Defendants 2 and 3 is that the evidence of D.Ws.3 and 2 that Manicka divided the properties giving 1/3rd share to Shanmugam and 1/3rd share to Pavunambal is inconsistent and contrary to the terms of the Will as held by the Court. Also, the Court has found that what is bequeathed under the Will is only 1/3rd and the same is inconsistent with the recital of the document viz., Ex.B.1.
20.The Learned Counsel for the Appellants/Defendants 2 and 3 contends that if according to the attestors D.Ws.2 and 3 under the Will Manicka divided the joint family properties and that Manicka has no right to deal with the entire properties as per Will, he could have bequeathed only 1/3rd of his share and on a proper construction of the Will and as per evidence of D.Ws.2 and 3, his only 1/3rd share should be taken to have been bequeathed in favour of the Plaintiffs and Defendants 2 and 3.
21.The Learned Counsel for the Appellants/Defendants 2 and 3 strenuously projects an argument that a comparison of the admitted signature of Manicka on the vakalat and the disputed signatures in Ex.B.1 Will dated 05.03.1990, the First Appellate Court ought to have held that the signatures in the Will are not genuine and should have rejected the Will.
22.Yet another contention of the Learned Counsel for the Appellants/Defendants 2 and 3 that the First Appellate Court should have found that Ex.B.1 Will dated 05.03.1990 projected by the Plaintiffs is not a true one and that the Suit itself has been engineered by one Shanmugam Mudaliar for dividing the rights of Defendants 2 and 3 from recovering the amount due and maintained by them.
23.According to the Learned Counsel for the Appellants/ Defendants 2 and 3, the Suit in O.S.No.103 of 1998 for partition has been filed by the deceased Muthammal and Shanmugam as Plaintiffs before the trial Court to avert the execution of Maintenance Decree obtained by Defendants 2 and 3 (who figured as Plaintiffs) in O.S.No.345 of 1990 and that pending O.S.No.103 of 1998, the 1st Defendant Manicka died and on his death, Defendants 4 to 8 have been impleaded as his Legal Representatives on the basis of Ex.B.1 Will dated 05.03.1990 and that Defendants 9 & 10 daughters have been impleaded as his Legal Representatives along with the 2nd Plaintiff Shanmugam and 3rd Defendant and in fact, the partition Suit in O.S.No.103 of 1998 has been filed by the mother-in-law and husband's brother of the 2nd Defendant against the 1st Defendant Father-in-Law, herself and her daughter.
24.It is the case of the Plaintiffs in O.S.No.103 of 1998 that they are ready and willing to give share and P.W.1 (2nd Plaintiff) in his evidence has deposed that his mother viz., the deceased 1st Plaintiff has filed O.S.No.103 of 1998 (praying for the relief of partition) because of the properties being brought into auction and till date even 10paise has not been paid towards the Maintenance Decree obtained in O.S.No.345 of 1990 by the 2nd and 3rd Defendants. Moreover, P.W.1 (2nd Plaintiff) has admitted in his evidence that the 2nd Defendant does not know about the family properties and that no panchayatdar has been examined and it is false to state that no income has been derived from the properties and the Nanja lands are Ayacut lands worth lakhs of Rupees and that the properties stand in the name of P.W.1.
25.The Learned Counsel for the Appellants/Defendants 2 and 3 submits that the entire joint family properties are liable, in law, in regard to the payment of Maintenance as Decreed in O.S.No.345 of 1990 and in fact, P.W.1 has not offered maintenance.
26.The genealogy table is shown below:
G E N E A L O G Y Manicka D.1 (died 17.12.94)
----
Muthammal P.1 (died 15.12.96) Vadivelu Lakshmi D.9 Rajammal D.10 Shanmugham P.2 Panchatcharam (died 1975)
----
Pavanambal D.2 Mangayarkarasi D.3 Senapathy D.4 Pothanathan D.5 Punyakoti D.6 Somasundaram D.7 Tamizhmani D.8
27.The Learned Counsel for the Appellants/Defendants 2 and 3 submits that the 1st Defendant Manicka died on 17.12.1994 and he has 1/3rd share in the joint family properties and when 2nd Defendant Pavunambal's husband Panchatcharam died during the year 1975 intestate, he has 1/3rd share in the joint family properties and other 1/3rd share goes to the 2nd Plaintiff Shanmugam and on the death of the 2nd Defendant's husband Panchatcharam, his 1/3rd share will devolve upon his heirs viz., his mother 1st Plaintiff Muthammal, his wife 2nd Defendant Pavunambal and his daughter 3rd Defendant Mangaiarkarasi in equal share i.e., each getting 1/3rd of his 1/3rd share viz., each of them will get 1/9th share in the joint family properties.
28.Proceeding further, the Learned Counsel for the Appellants/ Defendants 2 and 3 submits that on the death of Manicka his 1/3rd share will devolve upon his heirs viz., his wife 1st Plaintiff Muthammal, his son the 2nd Plaintiff Shanmugam, his daughters Lakshmi Ammal and Rajambal (Defendants 9 and 10) and 3rd Defendant Mangaiarkarasi (daughter of Panchatcharam, the predeceased son of Manicka) and each one will get 1/5th share of his 1/3rd viz., each will get 1/15th share.
29.It is the contention of the Learned Counsel for the Appellants/ Defendants 2 and 3 that 1st Plaintiff Muthammal died intestate on 15.12.1996 and at the time of her death, she has 1/9th share as heir of Panchatcharam and 1/15th share as heir of her husband Manicka (1st Defendant) and in all, 1/9 + 1/15 = 24/135 and on the death of the 1st Plaintiff Muthammal, 24/135th share will devolve upon her heirs as per Section 15(1)(a) of the Hindu Succession Act viz., son Shanmugam (2nd Plaintiff), daughters Lakshmi Ammal and Rajambal (Defendants 9 and 10) and 3rd Defendant (Mangaiarkarasi daughter of the predeceased son Panchatcharam) in equal shares and as such, Muthammal's 24/135th share will devolve hereunder:
Shanmugam : 24/540 Lakshmi Ammal : 24/540 Rajambal : 24/540 Mangaiarkarasi : 24/540
30.The Learned Counsel for the Appellants/Defendants 2 and 3 submits that the 2nd Plaintiff Shanmugam is entitled to get 1/3rd share in the joint family properties as his own, as heir of his father Manicka (1st Defendant) 1/15th share, as heir of his mother Muthammal, 24/540th share and hence, if calculated as 1/3 + 1/15 + 24/540 = (180+36+24)/540 and in all, he will get a share of 240/540th and the 9th Defendant is entitled to 1/15th share as heir of 1st Defendant, 24/540th share as heir of 1st Plaintiff Muthammal and in all 1/15 + 24/540 = (36+24)/540 = 60/540th share and the 10th Defendant is entitled to 1/15th share as heir of 1st Defendant Manicka, 24/540th as heir of 1st Plaintiff Muthammal i.e., 1/15 + 24/540 = (36+24)/540 = 60/540th and the 3rd Defendant is entitled to 1/9th as heir of Panchatcharam, 1/15th as heir of Manicka, 24/540th as heir of Muthammal and thus, she is entitled to 1/9 + 1/15 + 24/540 = (60+36+24)/540 = 120/540th share and the 2nd Defendant Pavunambal is entitled to 1/9th share as heir of Panchatcharam, 60/540.
31.Conversely, it is the submission of the Learned Counsel for the 1st Respondent in S.A.No.1751 of 2004/6th Respondent in S.A.No.1752 of 2004 (2nd Plaintiff in the Suit) that the 1st Defendant Manicka (since deceased) and his two sons viz., Shanmugam (2nd Plaintiff) and deceased Panchatcharam constituted a joint family and that the 1st Defendant (later deceased) has been the joint family manager and that the 1st Defendant Manicka (since deceased) and his brother Vadivel sold their ancestral lands at Vilvarayanallur Village, Madurantakam Taluk and shared the Sale Proceeds between them equally and out of the said Sale Proceeds, the 1st Defendant (during his lifetime) has purchased the suit properties items 1 to 5 as per Sale Deed dated 26.09.1966 and 09.07.1971 in his name respectively and therefore, the suit properties items 1 to 5 belonged to the ancestral joint family properties and Items 6 & 7 are ancestral Gramanatham site and a tiled house and all the joint family properties belong to the 1st Defendant (later deceased), 2nd Plaintiff (1st Respondent in S.A.No.1751 of 2004/6th Respondent in S.A.No.1752 of 2004) and deceased Panchatcharam.
32.The Learned Counsel for the 1st Respondent in S.A.No.1751 of 2004/6th Respondent in S.A.No.1752 of 2004 (2nd Plaintiff in the Suit) contends that after the death of Panchatcharam, son of the 1st Defendant Manicka, the Defendants 2 and 3 viz., Appellants (in both the Second Appeals) along with the 1st Plaintiff Muthammal (later deceased) have become his heirs and indeed the Appellants/ Defendants 2 and 3 filed O.S.No.345 of 1990 on the file of the District Munsif Court, Madurantakam, by bringing the suit properties items 1 to 5 for sale in E.P.No.145 of 1992.
33.The main thrust of arguments projected by the Learned Counsel for the 1st Respondent in S.A.No.1751 of 2004/ 6th Respondent in S.A.No.1752 of 2004 (2nd Plaintiff in the Suit) is that the Maintenance Decree obtained by the Appellants/ Defendants 2 and 3 in O.S.No.345 of 1990 will not bind the shares of the Plaintiffs over the suit properties and the Plaintiffs viz., the 1st Plaintiff Muthammal (later deceased) and her son viz., 1st Respondent/2nd Plaintiff, have filed a suit for partition in O.S.No.103 of 1998 on the file of the trial Court because of the fact that many endeavours for amicable partition and division of the suit properties failed due to their hostile attitude.
34.According to the Learned Counsel for the 1st Respondent in S.A.No.1751 of 2004/ 6th Respondent in S.A.No.1752 of 2004 (2nd Plaintiff in the Suit), the 1st Appellant Pavunambal's husband Panchatcharam died on 31.12.1975 and consequent upon her husband's death, she and her daughter viz., the 2nd Appellant (3rd Defendant) became entitled as per Section 6 of the Hindu Succession Act, 1956 to obtain a share out of the interest of the deceased husband in the coparcenary on the basis of a notional partition deemed to have taken place prior to his death and as such, on the date of death of the 1st Appellant's husband Panchatcharam, she is only entitled to claim right of share in the joint family properties and moreover, the right to claim partition or to obtain a share in the joint family properties is a substantial right than that of the maintenance claim. Further more, the 1st Appellant's mother Muthammal has only filed O.S.No.103 of 1998 on the file of the Learned Subordinate Judge, Madurantakam along with her another son viz., the 1st Respondent as 2nd Plaintiff, arraying, the 1st Appellant's Father-in-Law Manicka and the Appellants 2 and 3 as Defendants and after the death of Manicka, Defendants 4 to 8 have been added as Defendants and that the Appellants have not filed the suit claiming partition.
35.It is to be noted that as per Section 6 of the Hindu Succession Act, the Explanation I defines the expression 'interest of the deceased in Mitakshara coparcenary property' and incorporates into the subject the concept of a notional partition. As a matter of fact, this notional partition is for the purpose of enabling succession to and computation of an interest, which is otherwise liable to devolve by survivorship, and for the ascertainment of the shares in that interest of the relatives mentioned in Class-I of the Schedule. Subject to such carving out of the interest of deceased coparcener, the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption.
36.For the purpose of finding out the undivided interest of a deceased coparcener, a notional partition has to be assumed before his death and the same shall devolve upon his heirs by succession which will obviously include the surviving coparcener, who, apart from the devolution of the undivided interest of the shares upon him by succession would also be entitled to claim his undivided interest in the coparcenary property, which he could have got in a notional partition. The principles of Hindu Law on the subject in force at the time of the death of a coparcener should govern the question of ascertainment of the individuals, who would have been entitled to a share on the notional partition.
37.Section 8 of the Hindu Succession Act, 1956 speaks of 'General rules of succession' in the case of males when they die intestate, the property will devolve according to the provisions of this chapter. Whether on death of a male intestate devolution of property takes place after the commencement of the Hindu Succession Act, 1956. The widow of a male Hindu inherits simultaneously when a son, daughter and other heirs specified in Class-I of the schedule as per Section 9 of the Hindu Succession Act, 1956, which speaks of 'Order of succession among heirs in the Schedule'.
38.The Learned Counsel for the 1st Respondent in S.A.No.1751of 2004/6th Respondent in S.A.No.1752 of 2004 (2nd Plaintiff in the Suit) submits that in view of the fact that as per Section 6 of the Hindu Succession Act, 1956, upon the death of 1st Appellant's husband Panchatcharam, the Appellants are entitled to obtain a share in the joint family properties or they do have a right to file only a suit for partition and as such, the decree in O.S.No.345 of 1990 obtained by the Appellants towards maintenance is unenforceable in law. Further, the right to claim maintenance on the part of the Appellants have become extinguished or it gets merged into the higher relief of partition suit O.S.No.103 of 1998 filed by the Plaintiffs therein.
39.Advancing his arguments, the Learned Counsel for the 1st Respondent in S.A.No.1751of 2004/6th Respondent in S.A.No.1752 of 2004 (2nd Plaintiff in the Suit) contends that after the death of Panchatcharam, the 1st Appellant is only entitled to file a suit for partition if she has not obtained any share in respect of the joint family properties from Father-in-Law, who is in possession of the coparcenary property and from the beginning, it is the case of the Plaintiffs in O.S.No.103 of 1998 and the deceased Manicka 1st Defendant that they are willing to provide a share in the joint family properties as per Hindu Law and that the Appellants are not entitled to claim the maintenance right.
40.The Learned Counsel for the Respondents 2 to 6/Respondents 1 to 5 (in both the Second Appeals)/Defendants 4 to 8 contends that the deceased 1st Defendant has executed a registered Will Ex.B.1 dated 05.03.1990 bequeathing his 1/3rd share in the suit properties to Defendants 4 to 8 and the Will has been executed by Manicka in a sound state of mind in the presence of witnesses T.K.Elumalai, Ambalavana Mudaliar and Annamalai Chettiar and that the 1st Defendant expired on 17.12.1994 and the said Will has come into force upon the death of Manicka and Defendants 4 to 8 are in possession of their 1/3rd share in the suit property and cultivating the same.
41.The Learned Counsel for the Respondents 7 & 8 (both the Second Appeals)/Defendants 9 & 10 submits that the 1st Appellant's husband Panchatcharam predeceased Manicka on 31.12.1975 and that the 1st Defendant Manicka, father of the deceased Panchatcharam died subsequently. As per Hindu Law of succession, the 1st Plaintiff mother Muthammal (later deceased) is entitled to 1/3rd share of the deceased Panchatcharam since he died intestate and after the lifetime of Panchatcharam, the father of the Defendants 9 & 10 viz., 1st Defendant Manicka has been managing the joint family properties (during his lifetime) and inasmuch as the 1st Plaintiff Muthammal died intestate, the Defendants 9 & 10 are entitled to succeed the 1/3rd share of Muthammal that would have fallen to her share on the demise of her son Panchatcharam. Moreover, Defendants 9 & 10 are Class-I Legal Heirs of 1st Plaintiff Muthammal and the Defendants 9 & 10 are each entitled to 1/9th share of the deceased Muthammal and hence, they may be granted a right of 2/18th share in the suit properties
42.In response, the Learned Counsel for the Appellants submit that the suit for partition filed by the Plaintiffs in O.S.No.103 of 1998 is not maintainable without adding all the joint family properties and there are movables that are to be shared and that the family possessed 40 sovereigns of gold jewels, two wooden bureaus, paddy storing box, rice storing box and other utensils, one Gramanatham site also has not been included in the plaint schedule and therefore, the Suit is bad for partial partition.
43.According to the Learned Counsel for the Appellants, the 1st Defendant Manicka has no right to deal with the entire property as per Ex.B.1 Will dated 05.03.1990 and he could have bequeathed only 1/3rd of his share and as per the evidence of D.Ws.2 & 3, his 1/3rd share ought to have been bequeathed in favour of the Plaintiffs/Defendants 2 and 3. Moreover, the admitted signature of Manicka on vakalat and disputed signatures in Ex.B.1 Will dated 05.03.1990 vary and as such, the Will ought to have been rejected by the First Appellate Court.
44.The Learned Counsel for the Appellants contends that the deceased Manicka (1st Defendant) has purchased the house site during the year 1975 in his position as Kartha and Manager of the joint family and when he has sold the said property in the year 1977, the said sale will not and cannot, in law, bind the coparceners, unless it is for a binding purpose or for family necessity, as the case may be.
45.It is the evidence of P.W.1 (2nd Plaintiff) that the 1st Plaintiff (later deceased) is his mother and the 1st Defendant is his father (later deceased) and his brother Panchatcharam has expired and Panchatcharam's wife, the 2nd Defendant Pavunambal is his brother's wife and the brother's daughter is the 3rd Defendant and Defendants 4 to 8 are his sons and Defendants 9 and 10 are his sisters. Panchatcharam expired in the year 1975 and during the lifetime of his brother Panchatcharam, his brother, his father have remained as a joint family and that, his father has managed the affairs of the family and his father's brother Vadivel Mudaliar has expired.
46.Added further, it is the evidence of P.W.1 that his father and his uncle at Vilvarayanallur Village possessed ancestral properties and after selling those properties, his father has purchased a land at Pulambakkam and from and out of the Sale Proceeds of the ancestral properties, his father and his uncle have got partitioned and his father, from and out of the share, he obtained, has purchased 1 to 5 suit items through sale and 6 to 10 items of properties Natham lands and house are ancestral joint family properties and that Defendants 2 and 3 have also filed a case against the 1st Defendant in O.S.No.345 of 1990 on the file of the Madurantakam Munsif Court, claiming maintenance and the suit properties have been brought for auction and Ex.A.1 is the Auction Publication notice and inspite of attempts made to partition the suit properties through panchayatdar and Court, it proved futile and Defendants 2 and 3 have not agreed for the same and therefore, he has filed a suit for partition claiming 4/9th share for himself and his mother.
47.That apart, the evidence of P.W.1 is to the effect that his father died during the year 1993 and his father has executed a Will in favour of his grand children in respect of his share and that Defendants 9 and 10 have been added as parties to the suit, who claim the mother's share in the suit properties and after the filing of the suit, his mother has expired and that Defendants 2 and 3 have issued notice during the year 1982.
48.The evidence of P.W.1 (in cross examination) proceeds to the effect that at the time of the death of his brother Panchatcharam, his daugther Mangaiarkarasi (3rd Defendant) has been three months old child and after his brother's death, he is enjoying the family property and that the 3rd Defendant, aged 25 years is in Government job as on date and that she has studied upto +2 and from the 3rd Defendant's childhood, till she has joined in the job, single paise has not been spent for her and the 3rd Defendant and her mother, 2nd Defendant have filed a maintenance suit during the year 1990 and at that time, the 3rd Defendant has been 10 years old and a decree has been passed in the maintenance suit for a sum of Rs.20,000/- during the year 1990 and that the suit properties have been brought for auction to realise the fruits of the maintenance decree and therefore, he has filed the present suit O.S.No.103 of 1998 for partition along with his mother and that his father has filed A.S.No.61 of 1992 as against the judgment and decree passed in the maintenance suit O.S.No.345 of 1990 which has been dismissed and that the Defendants 2 and 3 do not know about the full details of the family properties and after the funeral rites of his brother, Defendants 2 and 3 have left the house and that panchayat talks have been held by Muthukalathu Mudaliar, Arumuga Mudaliar and Elumalai Mudaliar and they agreed to give 1/3rd share to Panchatcharam, but, Defendants 2 and 3 refused to receive the said share and that time, he has not filed the suit for partition and initially, Defendants 2 and 3 have filed a suit for maintenance and that after the death of his brother Panchatcharam, Defendants 2 and 3 have not been given any share in respect of the produce, produced by means of cultivation and that the land is a dry land.
49.Continuing further, the evidence of P.W.1 is to the effect that on 20.12.1993, the suit property has been brought for auction and till date, he does not know what amount of maintenance will have to be paid and that the family property is two acres and 11 cents and that A.3 and A.4 properties are his family properties and that the 2nd Defendant is residing, till date, in her mother's house and that the 3rd Defendant has not been married and for her marriage, no money has been allotted from and out of the family property and that in Madras, there is a property at Porur and he has not included the said property detail in the suit and that the Sale Deed is in his name and that he has not obtained permission for purchasing the property and that A.3 & A.4 suit properties viz., 1 to 6 items, which are joint family properties have been purchased by his father and that his father has 1/3rd share in the suit properties and he has 1/3rd share of the suit properties and his brother has 1/3rd share in the suit properties and Defendants 4 to 8 are the grand children of his father and prior to his death, his father Manicka has been in a sound state of mind and in good health and in the suit properties, Defendants 9 and 10 have 1/9th share and only from and out of the Sale Proceeds of the ancestral properties, the Pulambakkam property has been purchased.
50.The evidence of P.W.2 is to the effect that 1st Defendant possessed two acres of land at Nelvai Village and further, he possessed property at Vilvarayanallur and by selling the said property at Nelvai Village, properties have been purchased and that he knows the 1st Defendant, 2nd Plaintiff and Panchatcharam and that the 1st Defendant along with his two sons has remained as a joint family and the 2nd Plaintiff and Panchatcharam are teachers and that 20 years before, Panchatcharam expired and after the demise of Panchatcharam, his daughter has gone to her grandfather's house and thereafter, she has not returned to the Village and that the 1st Defendant has expired.
51.P.W.2 (in his cross examination) has deposed that the 1st Defendant has a share in the suit properties and he does not know about the 1st Defendant executing a Will in favour of his grand children and that Panchatcharam has died 7 years before and at the time of Panchatcharam's death, the 1st Defendant's wife has been alive and after Panchatcharam, his mother Muthammal and father Manicka have expired and he does not know whether Defendants 9 and 10 have been given share in the properties and that panchayat has not been conducted and that no partition has taken place between Panchatcharam and the 2nd Plaintiff.
52.P.W.2 also in his evidence goes to add that the 3rd Defendant Mangaiarkarasi has been educated and placed in a job and till such time, she has been maintained only by her mother's parents house and it is correct to state that the 3rd Defendant has been driven away from the joint family house, but later, he has denied the same and from that day onwards, the Defendants 2 and 3 are in the house of the 2nd Defendant's mother and the 3rd Defendant has now, after education, got employment.
53.The evidence of P.W.3 is to the effect that the 2nd Plaintiff has worked as a teacher and the property at Vilvarayanallur Village has been sold and only from and out of the joint family properties' Sale Proceeds, the land at Nelvai Village has been purchased. After the death of Panchatcharam, his wife's father Ekambaram has taken away the 2nd Defendant with him and the 2nd Plaintiff has 5 children and that he does not know directly about the execution of the Will by Manicka and that in the maintenance suit, the attachment proceedings have been initiated and that the properties have come for auction and only to stall the auction, the present suit for partition has been filed.
54.D.W.1 (6th Defendant) in his evidence has deposed that the 2nd Plaintiff is his father and the 1st Plaintiff is his grandmother and the 1st Defendant is his grandfather and that Shanmugham and Panchatcharam are sons of Manicka and that Panchatcharam has expired and that Panchatcharam's wife by name Pavunambal and daughter by name Mangaiarkarasi (Defendants 2 and 3), Defendants 4 to 8 are his brothers and Lakshmi Ammal and Rajambal (Defendants 9 and 10) are his aunts and that the suit properties have been purchased by his grandfather selling the property at Vilvarayanallur and his grandfather has 1/3rd share, 2nd Plaintiff (Shanmugam) is entitled to get 1/3rd share and Panchatcharam is entitled to get 1/3rd share in the suit properties and in the suit property there is no income and there is no Well and irrigation is carried out through Lake Water and at the time of Panchatcharam's death, his mother Muthammal has been alive and at the time of Manicka's death, he has been in a sound state of mind and health.
55.D.W.1 in his evidence has stated that in respect of the suit property, the 1st Defendant has executed a Will. In fact, he has come to know through his grandfather and that his grandfather Manicka, one month before his death, has shown him the Will and at that time, his brothers have been present and that the said Will, after his death, has come into force and based on the said Will Defendants 4 to 8 are in enjoyment of the suit properties and as per the Will, he is entitled to get 1/3rd share.
56.D.W.1 (in his cross examination) has stated that he does not know directly about the writing of the Will and that Manicka has died in his house and the 2nd Defendant Pavunambal has filed a suit against Manicka and his father, in regard to the jewels given to her parents house and he does not know as to whether in his grandfather's family 40 sovereigns jewels have been there or not.
57.D.W.2 in his evidence has deposed that Manicka has a land at Nelvai of Pulambakkam, which is a dry land and there is no Well irrigation and that Manicka has executed a Will in respect of the property 10 years before and the recitals for writing the Will has been mentioned by Manicka and that the Will has been written by Radhakrishnan of Perungaranai and Manicka (1st Defendant), after reading the Will, has affixed his signatures in 5 or 6 pages and himself, Ambalavanan and Annamalai has signed in the Will and he has seen 1st Defendant Manicka affixing his signature and so, also the 1st Defendant Manicka has seen him putting his signature and Ex.B.1 Will dated 05.03.1990 has been registered at Sithamur Registration Office and at the time of registration, he has signed and also, Ambalavanan has signed and Ambalavanan is not alive and at the time of executing the Will, Manicka has been in good health and sound state of mind.
58.D.W.2 in his evidence (cross examination) has deposed that all the lands of 1st Defendant Manicka are presently in the hands of Shanmugham Mudaliar (2nd Plaintiff) and that the 1st Defendant (Manicka) and also his sons have not paid the maintenance amount every month and in the maintenance suit, 4 years before, Rs.30,000/- has been brought and tendered, but the 2nd Defendant (Pavunambal) has not received the same. Further more, it is the evidence of D.W.2 that the 1st Defendant Manicka has not asked him to bring the 2nd Defendant or the 3rd Defendant at the time of writing of the Will, but the 1st Defendant never informed that he will give 1/3rd share to Defendants 2 and 3 and it is his desire, but the said desire has not been written in the Will.
59.Moreover, D.W.2 has stated in his evidence that the signature shown in the vakalat belongs to 1st Defendant Manicka, which is Ex.B2 and that the signature in the Will of Manicka and the signature of Manicka in Ex.B.2, vakalat in every letter, there is difference and at the time of writing of the Will, the 1st Defendant Manicka has been aged over 90 years and the signature in the Will Ex.B.1 at pages-1 & 3 are seen as alike and he does not know when the 2nd Plaintiff's children have come to know about the writing of the Will and that he has not seen the 2nd Plaintiff and informed about the writing of the Will and after writing of the Will either on the next day or the day after, he has not gone to the house of the 2nd Plaintiff.
60.D.W.3 in his evidence has deposed that Ex.B.1 Will dated 05.03.1990 has been executed by Accountant Radhakrishnan and that the 1st Defendant Manicka after writing the Will has read the same and affixed his signature and the Will has been written for six pages, in which, he along with Elumalai Mudaliar and Ambalavanan have signed as witnesses and after they affixed the signatures, Accountant has affixed his signature and that he has seen Manicka signing in the Will and the 1st Defendant Manicka has seen him affixing his signature and the 3rd witness signature belongs to him and Ex.B.1 Will has been written by Manicka and at the time of writing of the said Will, he has been in a sound state of mind.
61.D.W.4 (9th Defendant) in her evidence has deposed that the suit properties are all wet lands (Nanja lands) and her father possessed the properties at Vilvarayanallur, which have been sold by him and after selling the same, he has purchased the suit lands and she along with her brothers have enjoyed the suit properties jointly and her father Manicka (1st Defendant) has died 20 days before, on account of ill health and prior to that, he has been in good health and in the suit properties she has not been given any share and no partition has taken place in the family and in the suit properties, she is entitled to 1/9th share.
62.D.W.5 (2nd Defendant) in her evidence has deposed that her husband Panchatcharam died 26 years before and at the time of her husband's death, her daughter (3rd Defendant) has been 5 months old baby and after the death of her husband, she remained in her Father-in-Law's house for 3 months and later, they quarreled and therefore, her father has taken her to his house and thereafter, the Plaintiffs and the 1st Defendant have not given any article to her and the Seervarisai articles have been returned to her after filing of the Maintenance Suit before the Court and she received a sum of Rs.10,000/- belonging to her husband and the said amount not being sufficient, she has taken a loan and made her daughter to study and for the past 3 years, her daughter is working and as per Maintenance Decree, even 10paise has not been paid to her and only to prevent her from claiming the maintenance amount awarded in the Maintenance Decree, the present Suit has been filed.
63.D.W.5 in her evidence has stated that the mesne profits income will have to be given to her, derived from the suit properties and at all time, in the suit properties cultivations are done and groundnut is cultivated when paddy is not cultivated and from and out of the produce, even a small portion has not been given to her and the 2nd Plaintiff's 5 children are earning and his Father-in-Law has an ancestral house, a land in front of the house and a land has been situated in the next street and after her husband's death, the next street land has been sold and the land in front of her house alone remains and the land situated in the next street has been sold to Balu Mudaliar and the suit filed for partition, without paying the Maintenance Decree and also not paying the marriage expenses to her daughter, is not maintainable and even the land sold has to be included in the suit for partition and in the absence of the same, the suit is not maintainable and at the time of partition suit being filed, the 1st Defendant (her Father-in-Law) has been alive and at that time, he has been aged 90 years and she does not know about the writing of the Will by the 1st Defendant to and in favour of the Defendants 4 to 8 and that he has not executed the Will and moreover, the said Will is not valid and 9 and 10 Defendants are not entitled to get share in the suit properties.
64.It is not in dispute that the 1st Appellant/2nd Defendant's husband Panchatcharam expired on 31.12.1975. When the 1st Appellant/2nd Defendant's husband has expired on 31.12.1975, then, Section 6(3) of the Hindu Succession Act, 1956, specifies that on the death of a coparcener, there shall be a deemed division of the property i.e., notional partition and as a matter of fact, a deeming fiction has been introduced. Another change is that upon such notional partition, the property referred to in Sub-Section (3) of the Hindu Succession Act would be notionally divided among the heirs of the deceased coparcener, the daughter taking a share equal to that of a son, the share of the predeceased son or a predeceased daughter being allotted to the surviving child of such heirs. Also, Section 8 of the Hindu Succession Act, deals with succession to property of a male dying intestate. Section 8 of the Act groups the heirs of a male intestate into 4 groups and specified that his heritable property devolves firstly on the heirs specified in Class-I of the Schedule. Class-I of the Schedule enjoins 12 heirs so as to include in the new scheme of heirs the mother and daughter of the intestate and some more descendants, the latter by reference to the principle of representation. All these heirs inherit simultaneously. On failure of any such heir in Class-I, the property devolves upon the heirs mentioned in Class-II, an heir in the first entry in Class-II being preferred to one in the second entry and so on in succession. If there is no heir belonging to Class-I or even Class-II, the property devolves upon the Agnates of the deceased. An individual is said to be an 'Agnate' of another, if the two are related by blood or adoption wholly through males. If there is no, Agnate of the deceased in existence at the time of his death, the property devolves upon his Cognates. An individual is a 'Cognate' of another, if the two are related by blood or adoption, but not wholly through males.
65.As per Section 19 of the Hindu Adoptions and Maintenance Act, 1956 one of the conditions for the Father-in-Law to maintain daughter-in-law is that the daughter-in-law is not able to maintain herself from the share of her parents. A clear finding is very much essential where her parents have sufficient estate to maintain her and on what circumstances, she is unable to maintain herself or by her parents. In this regard, the parents of daughter-in-law are to be heard and only when they are arrayed as parties to the suit, their views can be heard. In the present case on hand, the 1st Appellant/2nd Defendant's parents have not been examined as witnesses before the trial Court either in O.S.No.103 of 1998 or in O.S.No.345 of 1990 filed by the Appellants. Also, in both the Suits, 1st Appellant/2nd Defendant's parents have not been arrayed as parties to the Suit. As per Section 19 of the Hindu Adoptions and Maintenance Act, the 1st Defendant Manicka (later deceased) has an obligation to maintain the widowed daughter-in-law viz., the 1st Appellant when she was unable to maintain herself out of her earnings or other property or where she has no property of her own, is unable to obtain maintenance from the estate of her husband or father or mother.
66.The obligation of the Father-in-Law is not to be enforced, if he has no means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share. But in the case on hand, on the death of 1st Appellant/1st Defendant's husband Panchatcharam on 31.12.1975, as per Section 6 of the Hindu Succession Act, on the death of such coparcener viz., Panchatcharam there would be a deeming division of the property to which Panchatcharam is entitled to, as if, the partition has taken place. It is crystal clear that on the date of death of Panchatcharam a notional partition and division has been introduced as per Section 6 of the Hindu Succession Act, 1956.
67.It cannot be gainsaid, Section 8 of the Hindu Succession Act also refers to succession to property of a male dying intestate as per the schedule. The right of the Appellants to obtain a share in the joint family suit properties wherein her deceased husband on the date of his death has remained as a coparcener is a substantial relief and the property rights of her husband dying intestate are heritable under the Hindu Succession Act. Therefore, this Court opines that even though the Appellants have not instituted a suit for partition in respect of the joint family properties wherein her husband deceased Panchatcharam has remained as a coparcener, but the fact remains that her mother-in-law as 1st Plaintiff and the 1st Appellant's deceased husband's brother have filed the suit for partition O.S.No.103 of 1998 arraying the 1st Appellant and the 2nd Appellant as Defendants 2 and 3 and the 1st Appellant's Father-in-Law has been shown as 1st Defendant in the Partition Suit. As such, the said suit for partition O.S.No.103 of 1998 filed on the file of the Learned Subordinate Judge, Madurantakam is maintainable in law. Moreover, already this Court in A.S.No.762 of 1995 has held that the suit O.S.No.345 of 1990 filed by the Plaintiffs therein (Defendants 2 and 3 in O.S.No.103 of 1998) is not maintainable and the Decree obtained in the said suit is a void decree.
68.As regards the plea projected on the side of the Appellants/ Defendants 2 and 3 to the effect that the suit in O.S.No.103 of 1998 filed by the Plaintiffs therein praying for the relief of partition in respect of immovable properties, is not maintainable in law because of the simple reason and that the movable properties like 40 sovereigns of gold jewels, paddy storing box, rice storing box, two wooden bureaus and other utensils have not been included in the list of items available for partition, it is to be pointed out that technically, all the items of movable and immovable properties will have to be shown in the list of items available for partition, in a partition suit. But, in the instant case on hand, the suit in O.S.No.103 of 1998 filed by the Plaintiffs relates to immovable properties and the non-inclusion of the aforesaid movable items such as gold jewels, etc will not, in any way, affect the suit for partition O.S.No.103 of 1998 filed by the Plaintiffs, in the considered opinion of this Court. It is open to the Appellants/Defendants 2 and 3 to take out an Interlocutory Application before trial Court by giving details of omitted movable items of joint family properties and in law, there is no impediment to pass a supplementary preliminary decree, in a partition suit.
69.Coming to the other stand taken by the Appellants/ Defendants 2 and 3 that the suit for partition in O.S.No.103 of 1998 filed by the Plaintiffs therein is not valid since one Gramanatham site purchased as per Ex.B.3 Sale Deed dated 12.05.1975 by the 1st Defendant Manicka (later deceased) and sold by him as per Ex.B.4 Sale Deed dated 21.11.1977 is not shown in the list of items of family properties. It is to be pointed out that 'Grama Natham' belongs to Government and in the present case, as per Ex.B.3 Sale Deed dated 12.05.1975, the vacant site has been purchased by Manicka (during his lifetime) during the year 1975 for a Sale Consideration of Rs.400/- and subsequently, it has been sold in Ex.B.3 Sale Deed dated 12.05.1975, the 1st Defendant Manicka has been mentioned as an agriculturists and further, he is simply described as an individual. Likewise, in Ex.B.4 Sale Deed dated 21.11.1977, the 1st Defendant Manicka has described the schedule property as belonging to him and has been in his enjoyment. Further, it is specified that for family and agricultural expenses, the sale is being effected. Even though the deceased 1st Defendant (Manicka) has purchased the Grama Natham site as per Ex.B.3 Sale Deed dated 12.05.1975 and subsequently, sold the same as per Ex.B.4 Sale Deed 21.11.1977. As already made mention of by this Court that Grama Natham belongs to the Government and even though the deceased 1st Defendant Manicka is the Kartha of the joint family, he can deal with the properties as per Ex.B.3 Sale Deed because of the simple reason that he has effected the said sale for the purpose of his family and agricultural expenses.
70.Even though, it is to be construed that 1st Defendant Manicka has purchased the Grama Natham site as per Ex.B.3 from and out of the joint family nucleus or out of the joint family funds, as Kartha of the joint family, there is no impediment for him in law to deal with the said Grama Natham site and as such, the non inclusion of the said item in the O.S.No.103 of 1998, filed for partition will not anyway affect the said suit O.S.No.103 of 1998 and as such, even without including the said Grama Natham the suit O.S.No.103 of 1998 filed by the Plaintiffs therein is maintainable in law and the same is not fatal on the plea of partial partition.
71.In regard to the contentions of the Appellants/Defendants 2 and 3 to the effect that Respondents 1 to 5/Defendants 4 to 8 will not get any right in respect of the suit immovable properties because of the fact that Ex.B.1 Will dated 05.03.1990 is not a true one and that the same has been engineered by the 2nd Plaintiff (Shanmugam) for dividing the rights of Defendants 2 and 3 from recovering the maintenance amount etc. It is to be pointed out that the deceased 1st Defendant during his lifetime in Ex.B.1 Will dated 05.03.1990 has interalia observed that his eldest son the 2nd Plaintiff Shanmugam, in spite of numerous troubles has maintained the family and also for treating the deceased brother Panchatcharam has undergone numerous troubles and also at his costs incurred expenses for his treatment etc. Moreover, all the properties mentioned in the Will have been registered at the Madurantakam Sub Registrar's Office by means of Sale Deeds in Book No.1 Volume 945 at pages 315 to 318 etc., and all the properties purchased by him belong to joint family properties in which, himself and his two sons have got 1/3rd share and also that his younger son Panchatcharam, on account of his sudden demise, he endeavoured to partition the properties peacefully, but his daughter-in-law Pavunambal viz., 2nd Defendant has not agreed for the same etc. As a matter of fact, there are recitals in Ex.B.1 Will (in Tamil) dated 05.03.1990 to the effect that in the schedule of properties mentioned in the Will, he has bequeathed his 1/3rd share in respect of the properties mentioned therein to his elder son Shanmugam's 5 children Senapathy (4th Defendant), Pothanathan (5th Defendant), Punniakotti (6th Defendant), Somasundaram (7th Defendant) and Tamilmani (8th Defendant). In fact, he has bequeathed 1/3rd share of his right in the properties mentioned in Ex.B.1 Will that Defendants 4 to 8 are to deal with the properties with absolute freedom by entering into sale transaction etc., and he has also specified clearly that in his share of immovable properties mentioned in the Will either his daughters or heirs have no right. Moreover, in page-3 of the Ex.B.1 Will dated 05.03.1990, the 1st Defendant (Manicka) has clearly mentioned that the 2nd Defendant and his daughters are in good position and he has nothing to do for them.
72.The Learned Counsel for the Appellants/Defendants 2 and 3 cites the judgment reported in Rajah D.K.Thimmanayanim Bahadur Varu, Rajah of Kalahasti and others V. Rajah Damara Kumara Venkatappa Nayanim Bahadur Varu and others, A.I.R. 1928 Madras 713, wherein it is held as follows:
"A charge on joint family property created by a decree for maintenance payable to the widow of a member of a joint Hindu family takes precedence over the right of a subsequent purchaser of the same property in execution of a money decree binding on the family."
73.The Learned Counsel for the Appellants/Defendants 2 and 3 submits that the evidence of D.Ws.3 and 2 that the 1st Defendant Manicka divided the properties giving 1/3rd share to the 2nd Plaintiff (Shanmugam) and 1/3rd to the 2nd Defendant (daughter-in-law Pavunambal), is inconsistent and contrary to the terms of the Will and if the evidence of D.Ws.2 and 3 are taken into account that as per Ex.B.1 Will dated 05.03.1990 (Manicka) divided the joint family properties and that he has no right to deal with the entirety of the property of the Will, he could have bequeathed only 1/3rd of his share and in reality and also based on property construction of Ex.B.1 Will dated 05.03.1990 (Manicka) viz., the 1st Defendant should be taken to have bequeathed his 1/3rd share in favour of the Plaintiffs and Defendants 2 and 3. A reading of the Tamil recitals of Ex.B.1 Will dated 05.03.1990 (at page-4) shows that in 1st Defendant's (Manicka) share, no one has got any right in respect of the immovable properties mentioned in the Will and also his wife Muthammal (1st Plaintiff in O.S.No.103 of 1998) has to be maintained and looked after by his grand children like what they have been doing and also, he has to be maintained till his lifetime and looked after in a proper manner and also, if there are any debts, his grand children has to clear the same. Therefore, it is quite clear that 1st Defendant Manicka has bequeathed only 1/3rd share in respect of immovable properties mentioned in Ex.B.1 Will dated 05.03.1990 and as per Section 91 of the Indian Evidence Act, the same deals with exclusiveness of documentary evidence and Section 92 of the Indian Evidence Act speaks of conclusiveness. Really speaking, Section 91 of the Indian Evidence Act prevents the proving of the contents of writing otherwise than by writing itself, it is covered by the rule of evidence, applicable not merely to solemn writing of the sort named but to others known as the best rule.
74.A written document is the single repository of the transaction between the parties. The best evidence in regard to the ingredients of a document is the document itself. A document will have to be interpreted applying the principles of construction/canon. Section 91 of the Evidence Act is inappropriate without the help of Section 92 of the Indian Evidence Act. Likewise, Section 92 is inoperative without the aid of Section 91 of the Indian Evidence Act, in the considered opinion of this Court. No doubt, when a nature and true character of a document is attacked/questioned, extrinsic evidence by way of oral evidence is permissible and admissible in law.
75.Section 30 of the Hindu Succession Act, 1956 confers power on a member of a joint family to make a Will in respect of his interest in the joint family property as per decision Madras State Bhoodan Yagna Board V. Subramania, AIR 1973 Mad 277. Also, the disability of a coparcener in disposing of his undivided interest in property by Will or other testamentary document as per old Hindu Law has been replaced by Section 30 of the Hindu Succession Act, 1956. Therefore, a surviving coparcener is competent to bequeath his properties by means of a Will as per decision Senthilkumar V. Dhandapani, AIR 2004 Mad 403.
76.Section 59 of the Indian Succession Act clearly points out that any individual can make a Will if he is of a sound mind and is not a minor. Further more, Section 30 of the Indian Succession Act does not prohibit a gift by a coparcener of his undivided interest in the coparcenary to another coparcener or even to a stranger as per decision Pariki Subbireddy V. Pariki Chinna Reddemma, 1996 (2) HLR 208 (AP)
77.In the instant case on hand, the contents of Ex.B.1 Will dated 05.03.1990 takes the front seat and it speaks for itself. A reading of Ex.B.1 Will dated 05.03.1990 shows that 1st Defendant (Manicka) has bequeathed his 1/3rd share in respect of the immovable properties mentioned therein to his grand children viz., Defendants 4 to 8. In law, he is entitled to bequeath his quantum of share he is entitled to get in the suit properties and the recitals of Ex.B.1 Will dated 05.03.1990 overrides the evidence of D.Ws.2 and 3 and as such, the same is valid in law. Notwithstanding the fact that Ex.B.1 Will dated 05.03.1990 has been executed by the 1st Defendant (after filing of the suit in O.S.No.103 of 1998), at the time of writing of Ex.B.1 Will dated 05.03.1990, the 1st Defendant has been aged 90 years.
78.In regard to the argument projected on behalf of the Appellants that D.W.2 has deposed in his evidence that the admitted signature of 1st Defendant Manicka in vakalat differs from the signature found in Ex.B.1 Will in every letter. It is to be pointed out that Ex.B.2 vakalat bears the signature of the 1st Defendant in Tamil and Ex.B.1 Will also contains 1st Defendant's signature in Tamil. Ex.B.2 vakalat in O.S.No.277 of 1993 (later renumbered as O.S.No.103 of 1998 on the file of the Subordinate Court, Madurantakam) says that the 1st Defendant has signed in Tamil before the Advocate on 21.02.1994. Because of the age factor of the 1st Defendant, who has been more than 90 years at the time of execution of Ex.B.1 Will dated 05.03.1990 and Ex.B.2 vakalat containing the 1st Defendant's signature will certainly have some difference and that cannot be taken advantage of by the Appellants (Defendants 2 and 3) as opined by this Court. Even in respect of his quantum of share in regard to the joint family properties, the 1st Defendant is entitled to execute a Will bequeathing his 1/3rd share and the same is a legal and valid one, in the eye of law.
79.The Learned Counsel for the Appellants/Defendants 2 and 3 cites the decision of the Hon'ble Supreme Court in Rani Purnima Debi and another V. Kumar Khagendra Narayan Deb and another, 1962 (2) MLJ 27, wherein it is held as follows:
"The mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting.
Therefore, the bald fact of registration of the will is insufficient to dispel the suspicions attending the due execution and attestation of the will and no letters of administration in favour of the respondent can be granted on the basis of it."
80.The Learned Counsel for the Appellants/Defendants 2 and 3 cites the decision of the Hon'ble Supreme Court in Gurdial Kaur and others V. Kartar Kaur and others, (1998) 4 Supreme Court Cases 384 at 385, wherein it is held as follows:
"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 violation 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 the suspicious circumstance. As in the facts and circumstances of the case, the court of appeal below did not accept the valid execution of the Will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the court of appeal below has also been upheld by the High Court by the impugned judgment, there is no reason to interfere with such decision."
81.He also seeks in aid of the decision of the Hon'ble Supreme Court Joseph Antony Lazarus (dead) by LRS. V. A.J.Francis, (2006) 9 Supreme Court Cases 515 & 516 wherein it is held as follows:
"It will be injudicious to suggest that in the present case there are no suspicious circumstances surrounding the execution and registration of the Will. It is difficult to understand as to why the testatrix omitted to mention two of her sons in the Will although she had taken great pains to mention the fact that the appellant and her other son, C had looked after her and had paid all the installments towards the house property, even though C had gone to Sharjah as far back as in 1963 and only the appellant was living with her in the house being the subject-matter of the bequest in the Will. That the testatrix was of very advanced age is admitted. It is also established that she had suffered a fall and had broken her thigh bone twice and that she had to be operated on both the occasions and that she was keeping indifferent health after her first fall. That by itself may not be sufficient to prove that she was incapable of executing the Will, but the defendant's contention that the appellant took advantage of the mishap and the subsequent dependence of the testatrix to influence her to make the Will in his favour and in favour of another brother who was not even residing in India will have to be taken into consideration while deciding the aforesaid question.
Apart from the above circumstances, what is perhaps of even more significance is the existence of the two signatures on each page of the Will, said to be those of the testatrix. While the Will is dated 5-7-1979 the same was registered on 7-7-1980 after more than a year. On examination of the photocopy of the Will which was in the records and to the naked eye it is quite evident that the two signatures are entirely different and have little or no likeness whatsoever.
The last and perhaps the most significant aspect of this matter is the failure of the appellant to examine the advocate who is said to have drafted the Will on the instructions of the testatrix and the non-examination of the Sub-Registrar before whom the Will is said to have been presented for registration. Both the said witnesses could have conclusively proved the facts relating to the preparation, execution and registration of the Will. In the absence of any evidence, it could not be ascertained as to whether the Will was ever read over and explained to the testatrix before she is said to have executed and presented the same for registration.
The cumulative effect of all the circumstances taken together gives rise to a genuine doubt regarding the genuineness of the Will and as to whether the same had, in fact, been executed by the testatrix and, if so, of her own free violation."
82.The Learned Counsel for the Respondents 2 to 6 in S.A.No.1751 of 2004/Respondents 1 to 5 in S.A.No.1752 of 2004/Defendants 4 to 8 cites the decision of this Court Palaniswami V. Ramayammal and others, 2007 (2) CTC 543 wherein it is held that "it is sufficient if at least one of attestors is examined to prove the Will and minor discrepancies in evidence cannot lead to rejection of Will as not proved and further, there is no evidence to show that the Will was procured under vitiating circumstances."
83.The Learned Counsel for the Respondents 2 to 6 in S.A.No.1751 of 2004/Respondents 1 to 5 in S.A.No.1752 of 2004/ Defendants 4 to 8 relies on the decision Ram Nath Das V. Ram Nagina Choubey and others, AIR 1962 PATNA 481 at 483 wherein in paragraphs-5 to 7 it is observed as follows:
"5. Four witnesses were called by the applicant to prove the execution and attestation of the Will (exhibit 5), namely, Tilak Dhari Rai (P. W. 1). Rafique Khan (P. W. 3), Pradumna Upadhya (P. W. 4)) and the applicant, Mahanth Ram Nath Das (P. W. 6). P. W. 3 is the scribe of the Will and P. Ws. 1 and 4 are two of the attesting witnesses. Their evidence establishes beyond doubt that P. W. 3 scribed the Will, and after it was written out, the contents were read over and explained to Mahanth Banwari Das, who put his pen-mark in token of his having executed the document, and thereafter the other witnesses attested the execution. There is absolutely nothing in the evidence to discredit their testimony. As a matter of fact, the objectors failed to elicit anything from the cross-examination which may be said to disprove the voluntary execution of the Will by Mahanth Banwari Das. In other words, there is nothing in the cross-examination to show that the Will was not scribed by P. W. 3 and was not executed by Banwari Das and was not attested by the witnesses who purport to have attested it.
There is no reason why all these persons will, combine to tell falsely against the objectors. As against this, there is total lack of evidence on behalf of the objectors to establish that the Will was not executed by the late Mahanth or that it was a forged and fabricated document. The only thing urged on their behalf is that at the time of the execution of the Will Mahanth Banwari Das was 90 years old. The inference sought to be drawn from his age is that he was of fickle mind and incapable of understanding the implication of his own act.
Mere old age does not lead to such an inference. There is no medical evidence to show that in fact Banwari Das had no capacity to understand the effect of his own action at the time when the Will was executed by him. Therefore, the general statement of these witnesses about the late Mahanth's lack of proper mental capacity cannot be accepted.
It is fruitless to examine in detail the evidence in this case, because the evidence absolutely falls short of establishing fraud in execution of the Will. Another suspicious circumstance that was pointed out by the learned counsel for the respondents is that Mahanth Banwari Das did not append his thumb-mark to the Will. This is true; but by itself this circumstance is not sufficient to out-weigh the evidence of the other witnesses, whose testimony, as discussed above, is aboveboard. Further, the affixing of thumb-mark to the document is not a necessary legal requirement of execution. A document may be executed also by putting pen-mark thereon, and, therefore, the law about the execution of the document has been fully satisfied.
Learned counsel for the appellant, however, drew my attention to the fact that the thumb-mark of Mahanth Banwari Das occurs on the back of the first page of the document called Will. This thumb-mark was given by Mahanth Banwari Das before the registering officer. A sale deed (exhibit 6) has been filed to establish the identity of the thumb-mark on the Will. The Finger Print Expert (P. W. 2) has given his opinion that these two thumb-marks tally. The existence of thumb-mark on the back of the Will is not an evidence of execution of the Will, but this, however, supports the evidence of execution adduced by the applicant. The learned Additional District Judge has not given any cogent reason for discarding this evidence. In face of this evidence, which I find it difficult to discard, I do not agree with the conclusion of the learned Judge that the Will is suspicious and spurious. Having considered the evidence carefully, I hold that the document (exhibit 5) said to be a Will was duly executed by Mahanth Banwari Das and is a genuine document.
6. Learned counsel for the objectors, however, contended that even assuming that it was a genuine document, it did not operate as a Will. Before I examine this important argument, I would dispose of another contention, namely, that the Will propounded by the applicant was not the last Will and testament of Mahanth Banwari Das. This contention is based upon the evidence of P. W. 6. He has deposed that on the day the Will (exhibit 5) was executed, Mahanth Banwari Das had executed another Will in favour of Deonarain Das, his full brother. It is, however, not certain which Will was executed first. This statement, by itself, is not sufficient to show that the disputed Will was not the last will of Mahanth Banwari Das. The evidence of P. W. 6 read as a whole leaves no room for doubt that this was his last Will and testament. He has stated in examination-in-chief and it was not challenged in cross-examination, that the disputed Will was the last Will and testament executed by Mahanth Banwari Das. Therefore, this contention is wholly without any merit.
7. Adverting to the main contention that the document in question was not strictly a Will, but an instrument purporting to appoint only a successor, it will be necessary to examine the contents of the Will. Its relevant portion is as under :
"Therefore, I, the executant, in a sound state of mind, in enjoyment of my proper senses, on fully understanding all the matters in good faith and for the benefit of the Kutias on taking advice from my well-wishers and legal advisers, independently, without pressure and coercion, without any inducement and persuasion on the part of others, execute this Will as per stipulations given below. So long as I, the executant, am alive, I shall remain in possession and appropriation of all the articles and property and the Kutias as usual. After the death of me, the executant, Ram Nath Das, the disciple of me, the executant, will be the Mahanth of the aforesaid Kutias in my place. He will enter into possession of the entire property and assets of the Kutias in place of me, the executant. He will manage the affairs in the same manner as they are done during the time of me, the executant, and he will improve the property and the Kutias so that Puja Path, Rag Bhog of Shri Rainjee and all other gods, and the Sadhus and Mahatmas may continue nicely. Whatever rights I, the executant, have, will pass on to Ram Nath Das. He will get his name registered wherever necessary, in place of the name of me, the executant. I, the executant, appoint Ram Nath Das aforesaid as executor.'' The language of the Will is quite explicit and unambiguous. The operative portion of the Will reproduced above manifestly shows that there is no disposition of the properties of the Math by this document. All that Mahanth Banwari Das purports to do by this document is to provide for his successor and thus he has laid down therein that after his death, Ram Nath Das, his disciple (the applicant), would be the Mahanth of the Kutias mentioned therein in his place. It is further evident, and it is not disputed by learned counsel for the appellant, that the properties of the Kutias are not dealt with by this document. There is no disposition of the properties of the Math.
84.Further, the Learned Counsel for the Respondents 2 to 6 in S.A.No.1751 of 2004/Respondents 1 to 5 in S.A.No.1752 of 2004/Defendants 4 to 8 draws the attention of this Court to the decision of the Hon'ble Supreme Court in Pentakota Satyanarayana and others V. Pentakota Seetharatnam and others, AIR 2005 Supreme Court 4362 wherein in paragraphs- 24 to 27, it is held hereunder:
"A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator.
In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that propounders themselves took a prominent part in the execution of the Will which confer on them substantial benefits. In the instant case, the propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P. Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shift to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.
It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty & Ors, (2005) 2 SCC 784. In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case.
Mr. Narsimha, learned counsel for the respondents, submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC 321."
85.Also, in paragraphs-30 & 33 in the aforesaid judgment it is observed as follows:
"DW6 stated that D1 brought the draft Will and asked him to scribe the same. This is nowhere contradicted by DW5. DW5 does not say that D1 (testator) did not bring a draft Will. It is quite natural for the testator to have a first draft Will in the pocket when he goes to a document writer. DW5 was asked to attest. DW6 also speaks about the execution and attestation. The trial Court has made much about the draft Will aspect. This is hardly a suspicious circumstance. DW6 says that 4 male persons accompanied D1. This is hardly a suspicious circumstance. DW5 also states that there was another person whom he would not identify. The deposition was given in 1997 (i.e. 17 years after the registration of Will) and the courts below ought not to have made a mountain out of a molehill and on that basis reject a duly executed registered Will.
In the counter affidavit filed in this Court on behalf of respondent Nos. 1 and 2, the respondents once again have taken shelter under wild assumption that name of the father of the appellants was mentioned as one Arala Kanakaiah in the Ex.A6-A8. This clearly shows and proves the conduct of the respondents in misleading the Court while Ex.A6-A8 reads something else as could be seen from para 31 of the trial Court judgment. As can be seen from Ex.A6, third appellant was born on 08.02.1955 and was admitted in the school on 10.06.1960. The Headmaster of Mandal Parishad, Elementary School was examined on 22.01.1997. According to him, he joined the school 5 years before. He produced the documents along with the Photostat copies for relevant entries. Even though originals of all the documents were available, only Photostat copies of the documents were put to the witnesses. The Headmaster also deposed that he has no personal knowledge of these documents. D7 (who is aged 70 years) has deposed that D2-D5 are the children of Kantamma born through the first defendant and he gave information regarding the birth of second defendant to the government officials and he gave information to the effect that Alla Kanakaiah was the father of D3. He further deposed that he gave such information as D1 was fearing that he would lose his job. He also deposed about the marriage performed by D1 and Kantamma. In cross-examination, he stated that Alla Kanakaiah is the first husband of Kantamma and that D7. He also spoke about the caste divorce between Kanakaiah and Kantamma. Ex.B8 voters list has shown the appellant as children of the testator D1. DW4 has said only because testator D1 was having a government job as Village Munsiff. He did not disclose in the official record that the appellants are his children. In this background, there is nothing wrong if the testator describes the appellants as his children particularly when the same stand is taken in his written statement also. In our opinion, Ex. A5-A9 and X series cannot at all be looked into for any purpose and that the same would have been procured by the respondents to put forth their case."
86.The Learned Counsel for the Respondents 2 to 6 in S.A.No.1751 of 2004/Respondents 1 to 5 in S.A.No.1752 of 2004/ Defendants 4 to 8 also draws the attention of this Court to the decision of the Hon'ble Supreme Court in Gurdev Kaur and others V. Kaki and others, 2007 (1) CTC 334 at 335 and 351 in paragraphs-76 & 77 wherein it is observed and held as follows:
"76.The High Court also observed that "no father is normal circumstances would like to disinherit the daughters".
77.The High Court has clearly deviated from the settled principles of interpretation of the Will. The Court does not sit in Appeal over the right or wrong of the testator's decision. The Court's role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the Court looks into the nature of the bequest."
87.The Learned Counsel for the Respondents 2 to 6 in S.A.No.1751 of 2004/Respondents 1 to 5 in S.A.No.1752 of 2004/Defendants 4 to 8 cites the following decisions:
(a)Muniammal V. Annadurai (Deceased) and 7 others [R5 to R8 brought on record as LRS of the deceased R1 as per order of Court dated 15.06.1999 in C.M.P.No.15009 of 1998], 2008 (4) CTC 589 at 591 & 592, it is held as follows:
"Plaintiff challenging registered Will on the main grounds that there were suspicious circumstances like disinheritance of the wife and many contradictions in the evidence of the attesting witnesses. The Trial Court upheld the genuineness of the Will and dismissed the Suit for declaration of title and possession filed by the wife of the testator.
On Appeal held, undoubtedly, the deposition of D.W.3 is not in consonance with the deposition of D.Ws.1 and 2 relating to the presence of all the witnesses at one and the same time when the testator signed the Will. But he core question is as to whether that contradiction should be held as a significant one so as to doubt the very genuineness of the execution of the Will by the Raja Gounder himself. In my considered opinion, the contradiction as highlighted on the side of the plaintiff are not relating to the very execution of the Will by Raja Gounder himself, but it is relating to the allied facts. No doubt, I am fully aware of the fact that a litigant who is desirous of attacking a Will would try to place reliance on these contradictions relating to allied facts as otherwise, according to him he would not be able to attack the Will at all.
I am of the considered opinion that in view of the catena of decisions emerged in this regard,which would be discussed infra, such contradictions are not capable of carrying conviction with the Court to hold the Will as one not proved. It is also a fact to be noted that Ex.B.1 is a registered Will and it has now become a trite proposition that registration of a Will is an additional factor to establish the genuineness of the Will. At this context, I would like to refer to the various decisions cited on both sides.
The aforesaid cited decision is very much applicable in the facts and circumstances of this case and a mere perusal of it would indicate the same, as Ex.B.1 is a registered Will and in fact, execution of the Will was on 20.10.1964 and the Will was presented for registration on 05.11.1964. As such, the time gap between the execution and the registration of the Will further strengthens the genuineness of the Will, as it would indicate that there was no hustling through in the process of executing the Will as well as in getting the Will registered. Normally if there is any fraud or coercion involved in the execution of the Will, naturally there would be element of urgency and hustling through and it would be writ large. But in this case, such elements are totally missing which exemplifies that in the normal course the testator executed the Will and got it registered. Simply because one of the attesting witnesses attested it on 04.11.1964, that would not detract the genuineness of the Will. No doubt, before the trial Court adequate explanation was not given about such belated attestation by A.Govinda Raj. Even de hors the attestation of A.Govinda Raj, the Will stands proved in view of the evidence as set out supra to the effect that the other attesting three witnesses clearly and categorically spoke about the due execution of the Will by the testator and the attestation of the Will by the witnesses.
Here virtually the plaintiff tried to make a mountain out of a molehill by trying to point out the contradictions relating to allied matters in respect of the execution of the Will. In the said case dealt with by the Hon'ble Supreme Court, there was 17 years gap between the date of execution of the Will and the deposition before the Court. But here, it is obvious that the time gap is more than 22 of 23 years. Hence, the ratiocination as set out in paragraph No.31 of the Hon'ble Apex Court's judgment can readily be relied on for rejecting the contention on the plaintiff side, based on those contradictions in the evidence of the witnesses.
Indubitably and unassailably, the fact remains that the plaintiff Muniammal and the testator Raja Gounder during their life time could not see eye to eye and they were at lagger ends and in fact, they got themselves locked up in litigations which were initiated by Muniammal, claiming maintenance not on one occasion but on two occasions. Incontrovertibly and indisputably, the facts are to be effect that Muniammal filed O.S.No.15 of 1943 for maintenance and thereafter, she also filed one other suit O.S.No.11 of 1968 claiming maintenance. The couple had no issues. It is therefore clear that for decades together ill-will prevailed between the couple. The evidence adduced on the defendants side would clearly indicate that Raja Gounder was looked after by the defendants and their families and in such case, it is but natural on the part of the Raja Gounder to execute Ex.B.1 in favour of his sister's son viz., Anna Durai (D1), Sugavanam (D2), D3 and D4 are the respective fathers of D1 and D2.
The preponderance of probabilities would govern the adjudication in civil cases. Here the fact that Muniammal was not in good terms with her husband Raja Gounder has been established and it is an admitted fact and in such a case, it is no wonder that Raja Gounder disinherited Muniammal by executing Ex.B.1 Will."
(b)Selvi and 2 others V. Gomathy Ammal, 2009 (1) CTC 541, it is held that "to prove a document to be required to be attested by law one attesting witness should be examined and one of the attesting witnesses stated in his evidence that he has seen signature of executant and that is sufficient proof of valid attestation and further, the said witness need not prove contents of document."
Also, at pages-542 & 543 of the aforesaid judgment, it is held as follows:
"Therefore, from the close reading of the provision of Section 3 of the Transfer of Property Act, 1882 and Section 68 of the Evidence Act as well as the decisions referred to above, it is made clear that where an attesting witness stated in his evidence that he has seen the signature of executant, itself is a sufficient proof and valid attestation. To put in a nutshell, the role of attesting witness to a document required by law to be attested is that he should see signature of executant and executant must see his signature and he need not prove the contents of document."
(c) G.Wilson V. Stella Mary and another, 2010 (2) CTC 667 at 668, it is held as follows:
"It is admitted that the propounder was residing with her parents namely, the executant and the first respondent. She was unmarried and she is the only daughter. Whether she was in a position to influence her father to execute the "Will" only in her favour? It is well settled that simply because the propounder was living along with the executant will not necessarily mean that she or he exercised such undue influence. The executant was hale and healthy and he was in sound state of mind. This fact are proved by the conduct of the parties. He had prosecuted cases against his son and he had been in connection with his brother and he had alienated some of his properties during the relevant period.
It is also admitted that the relationship between the father and the son was strained. Suits were pending between the father and the son. However, the recitals in the deed would show that he had considered the position of the son also before bequeathing the property in favour of his only daughter. It is also to be seen that he has bequeathed only one property under the "Will" and not the entire property. The remaining portion of the property was settled under a settlement deed. The trial Court has rightly found that had he been influenced, he would have settled both the properties under the "Will" and he would not have chosen two modes of transfer of property. Therefore, these circumstances would show that there is no undue influence by the daughter over the father."
88.One cannot brush aside an important fact that the 1st Defendant (Manicka) has taken part in the suit proceedings in O.S.No.345 of 1990 filed by the Defendants 2 & 3 (who figured as Plaintiffs in the Maintenance Suit) and that will unerringly point out that at the time of execution of Ex.B.1 Will dated 05.03.1990, the 1st Defendant (Manicka) has been in a sound and disposing state of mind, when he bequeathed his 1/3rd share in respect of the suit immovable properties mentioned in the Will to Defendants 4 to 8, as opined by this Court.
89.D.W.1 (6th Defendant) in his evidence has clearly deposed that the 1st Defendant (his grandfather) at the time of his death has been in sound state of mind and good health and that he does not know about the Will directly and he has come to know about the execution of the Ex.B.1 Will dated 05.03.1990 by his grandfather viz., 1st Defendant after being informed by the latter and one month one month before his grandfather's death, his grandfather has informed him about the execution of the Will and has shown him the same.
90.D.W.2 (attesting witness) in his evidence has deposed that the Will has been written by scribe Perungaranai Radhakrishnan and he along with Annamalai has signed as attesting witness and the scribe Radhakrishnan has also signed in the said document and he has seen the 1st Defendant affixing his signature in Will and also that the 1st Defendant (Manicka) has seen himself affixing his signature.
91.D.W.3 (another attesting witness to the Will) has also stated in his evidence that he along with Elumalai Mudaliar and Ambalavanan has signed as witness in the Will and also the Accountant has signed in the said document and he has seen the 1st Defendant affixing his signature in the Will and that the 1st Defendant (Manicka) has read the contents of the Will and also the 1st Defendant (Manicka) has seen him affixing his signature and moreover, at the time of execution of Ex.B.1 Will dated 05.03.1990, Manicka has been in a good health. Therefore, the evidence of D.Ws.1 to 3 clearly speak about the factum of execution of Will by the 1st Defendant (Manicka) and therefore, there can be no suspicion about the execution of Ex.B.1 Will dated 05.03.1990 by the 1st Defendant (Manicka) and in fact, the Ex.B.1 is a true and genuine document and the contra plea taken on behalf of the Appellants/Defendants 2 and 3 that Ex.B.1 Will has been engineered by the 2nd Plaintiff (Shanmugam) is unworthy of acceptance by this Court and accordingly, the same is rejected.
92.Also, this Court holds that Will has been proved as per Section 68 of the Indian Evidence Act and the slight variations/ discrepancies/differences in the signature of 1st Defendant in Ex.B.1 Will dated 05.03.1990 in comparison to that of the 1st Defendant in Ex.B.2 vakalat are not fatal to the case of the Plaintiffs in the partition suit.
93.As a matter of fact, the Appellants/Defendants 2 and 3 cannot be the Maintenance Holders/Sharers. Indeed, the maintenance right/ claim made by the Appellants/Defendants in O.S.No.345 of 1990 will apply only when they are not entitled to any share in the joint family properties. But, in the instant case, the Appellants/Defendants 2 and 3, in law, have a categorical and clear right to claim their respective shares in the joint family properties in the partition suit O.S.No.103 of 1998 filed by the Plaintiffs (Muthammal and Shanmugam) before the trial Court.
94.In short, the question of merger of Maintenance Decree in O.S.No.345 of 1990 does not arise because of the fact that the substantial or superior right of partition will override the right to claim maintenance, in the considered opinion of this Court.
95.Apart from that, in view of the fact that after the death of 1st Defendant's son Panchatcharam, the Appellants/Defendants 2 and 3 in O.S.No.103 of 1998 being his heirs (his wife and daughter) are only entitled, in law, to file a suit for partition and the right to claim a share in the joint family properties is a substantial relief and since the 1st Appellant's husband Panchatcharam expired on 31.12.1975, under Hindu Law, upon his death, a notional partition or deemed partition has taken place in the joint family comprising of the 1st Defendant (Manicka), the deceased son Panchatcharam and another son Shanmugam. Moreover, the Maintenance Decree in O.S.No.345 of 1990 and later confirmed in A.S.No.61 of 1992 by the 1st Appellate Court are only void decrees and the right to claim partition or to file a partition suit as per Hindu Law in respect of joint family properties is a right of inheritance. Viewed in that perspective the substantial questions of law 1 and 2 are so answered against the Appellants/ Defendants 2 and 3.
S.A.No.1751 of 2004:
In the result, it is held by this Court that when the 1st Defendant died on 17.12.1994, his share in the joint family properties is 1/3rd, when 1st Appellant's husband Panchatcharam died on 31.12.1975 intestate, his quantum of share in the joint family properties is 1/3rd and the balance 1/3rd share goes to the 2nd Plaintiff (Shanmugam). Further, on the demise of Panchatcharam (1st Appellant's husband), his 1/3rd share devolved on his heirs viz., his mother 1st Plaintiff-Muthammal, his wife 1st Appellant-Pavunambal, his daughter 2nd Appellant-Mangaiarkarasi in equal shares, each one of them getting 1/3rd of his 1/3rd share viz., each one of them are entitled to 1/9th share in the joint family properties. On the death of the 1st Plaintiff Muthammal, pending suit, her 1/9th share devolves on the 2nd Plaintiff (Shanmugam), Defendants 2 and 3 (Pavunambal and Mangaiarkarasi) and Defendants 9 and 10 (Lakshmi Ammal and Rajambal daughters of the 1st Plaintiff and deceased 1st Defendant), each entitled to 1/36th share. As such, the 2nd Plaintiff (1st Respondent - Shanmugam) is entitled to 1/3+ 1/36 = 13/36th share; Defendants 2 and 3 (Appellants 1 and 2 - Pavunambal and Mangaiarkarasi) are entitled to 2/9 + 1/36= 9/36th share; and Defendants 9 and 10 (Respondents 7 and 8 - Lakshmi Ammal and Rajambal) are each entitled to 1/36th share in the joint family suit properties.
Accordingly, S.A.No.1751 of 2004 filed by the Appellants/ Defendants 2 and 3 is disposed of by this Court in above terms. The respective sharers/parties to the litigation are directed to pay necessary Court Fees as per Tamil Nadu Court Fees and Suits Valuation Act, 1955 before the trial Court in O.S.No.103 of 1998. There shall be no order as to costs.
S.A.No.1752 of 2004:
In the result, the Ex.B.1-Will dated 05.03.1990 is held to be valid and as such, the Respondents 1 to 5 (Defendants 4 to 8) are entitled to 1/3rd share of 1st Defendant Manicka, in respect of joint family suit properties. In that view of the matter, S.A.No.1752 of 2004 is dismissed. There shall be no order as to costs.
09.04.2012 (2/2) Index : Yes Internet : Yes va M. VENUGOPAL,J., va To 1.The Principal District Judge, Chengalpattu. 2.The Subordinate Court, Madurantakam. Judgment in S.A.Nos.1751 & 1752 of 2004 (2/2) 09.04.2012