Madras High Court
Kasthuri Ammal vs G.Sampath on 22 February, 2013
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.02.2013 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1308 of 2001 1. Kasthuri Ammal 2. Thiruvenkata Naidu (Deceased) 3. Narayanan 4. Venkatesan 5. Manjula 6. Lakshmi 7. Priya ... Appellants [Appellants 5 to 7 brought on record as L.Rs. of the deceased 2nd appellant vide order of court dated 3.8.2012 made in CMP Nos.146 to 148 of 2012 in S.A.No.1308 of 2001] vs. G.Sampath ... Respondent This second appeal is filed against the judgment and decree dated 28.03.2001 passed by the learned Principal District Judge, Tiruvannamalai in A.S.No.129 of 2000 in reversing the judgment and decree dated 20.09.2000 passed by the learned Subordinate Judge, Cheyyar in O.S.No.35 of 1999. For Appellants : Mr.S.Balasubramanian for Mr.P.G.Padmanabhan For Respondent : Mr.V.Raghavachari JUDGMENT
This second appeal is focussed by the defendants, inveighing the judgement and decree dated 28.03.2001 passed by the learned Principal District Judge, Tiruvannamalai in A.S.No.129 of 2000 in reversing the judgment and decree dated 20.09.2000 passed by the learned Subordinate Judge, Cheyyar in O.S.No.35 of 1999.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the germane facts absolutely necessary for the disposal of this second appeal would run thus:
a. Sampath, the respondent herein filed the suit O.S.No.35 of 1999 for partition and separate possession of his half share in the suit scheduled properties.
b. Written statement was filed by D2, which was adopted by other defendants, resisting the suit.
c. Whereupon issues were framed by the trial court.
d. Up went the trial, during which, the plaintiff examined himself as PW1 along with PW2 and marked Exs.A1 to A12. On the defendants' side, D.Ws.1 to 5 were examined and Exs.B1 to B29 were marked.
e. Ultimately, the trial court dismissed the suit in toto.
f. Being aggrieved by and dissatisfied with the same, the plaintiff preferred appeal. Whereupon, the first appellate court reversed the judgment and decree of the trial court and decreed the suit in toto.
g. Challenging and impugning the judgment and decree of the first appellate court, this second appeal has been focussed on various grounds suggesting various substantial questions of law.
h. My learned predecessor, while admitting the second appeal, formulated the following substantial questions of law:
i) Whether the finding of the first appellate court that Ex.B29, the Will executed by Ramabadra Naidu should be treated as a suspicious document is legally sustainable in view of the evidence of D.Ws.3 to 5?
(ii) Whether the finding of the first appellate court that suit item 15 is not the self acquired property of the second appellant is legally sustainable inasmuch as the second appellant was employed in a co-operative society, and from that income he purchased the suit 15th item?
4. Heard both sides.
5. Both these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.
6. Indubitably and indisputably, incontrovertibly and unarguably one Ramabadra Naidu was the original owner of the suit item Nos.1 to 14 specified in the schedule of the plaint. He had three daughters, viz., Janobai Ammal, Kasthuri Ammal and Vegavathi. Vegavathi died issue less. Janobai Ammal died leaving behind her only son, viz., Sampath, the plaintiff as her unique legal heir. D1 is Kasthuri Ammal and D2 is the husband of D1. D3 and D4 are brothers of D2.
7. It is the case of the plaintiff that item No.15 of the suit scheduled property was purchased in the name of D2 from out of the income derived from the item Nos.1 to 14 and that should also be included in the partition.
8. Whereas the defendants would come forward with a case, which could succinctly and precisely be set out thus:
(i) The said Ramabadra Naidu during his life time was looked after by Kasthuri Ammal exclusively and he out of love and affection towards her, bequeathed item Nos.1 to 14 in her favour by the unregistered Will Ex.B29 dated 10.12.1975. Inasmuch as the plaintiff Sampath was motherless, D1 and D2 looked after him as their own son and nurtured him and ultimately solemnised his marriage also and made him to reside in the old house, which is adjacent to their house. While so, the plaintiff developed some suspicion and animosity as against D1 and D2 and filed the suit baselessly.
(ii) On the death of Ramabadra Naidu in the year 1976, the Will came into effect and it was acted upon. In fact, it is the case of the defendants' that as per the mandates in the Will of the testator, D1 discharged the debts incurred by Ramabadra Naidu. D1 sold the suit item Nos.6, 10, 11 and 12 to the defendants 3 and 4 for valid consideration as she was the absolute owner of those properties as per the Will.
Accordingly, the defendants' prayed for the dismissal of the suit.
9. Indubitably and indisputably, in view of the admitted relationship between the plaintiff and D1, but for the Will propounded by D1, Sampath and Kasthuri Ammal would be entitled to half share each as per Section 8 r/w the Schedule under Class I heirs of the Hindu Succession Act, in the suit properties 1 to 14, which stood in the name of Ramabadra Naidu. D1, being the propounder of the Will was enjoined to prove the unregistered Will to the satisfaction of the court. As a sequela, it has to be seen as to whether, she discharged her burden strictly in accordance with Section 68 of the Indian Evidence Act.
10. The learned counsel for the defendants would argue that Ramabadra Naidu in all probabilities and in the circumstances of this case had occasion to have special love and affection to D1, who happened to be his natural heir and bequeathed all his properties and perhaps the testator might have felt, Sampath being a male and capable of earning could go without even the testator's property. Whereas the learned counsel for the plaintiff would object to such line of argument on the main ground that there is no question of D1 being considered as the natural heir of the testator Ramabadra Naidu and estranging Sampath though he was not the natural heir of him.
11. I would like to agree with the submission made by the learned counsel for the plaintiff in view of the law embodied in the Hindu Succession Act, 1956. Before the commencement of the Hindu Succession Act, 1956, the daughter was not the legal heir to her father to inherit his property. However, after the advent of the Hindu Succession Act 1956, both D1 being daughter of the Ramabadra Naidu and the plaintiff-Sampath, being the son of the pre-deceased daughter of Ramabadra Naidu, are all Class I heirs and because of the artifact of the Hindu Succession Act both are Class I legal heirs. In such a case, the question of labelling or dubbing Kasthuri Ammal as the natural heir and estranging Sampath from that caption, fails to carry conviction with this court.
12. Paramount as it is, the evidence on record should be analysed in stricto sensu relating to the unregistered Will Ex.B29 dated 10.12.1975.
13. I would like to fumigate my mind with the following precedents including the decisions cited on both sides.
[A] (i) 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs. G.Jankiraman]-Madras High Court . The said decision is on the point that the Court while analysing the Will is acting as a Court of conscience. An excerpt from the above said decision would run thus:
"26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspicions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspision is also to be looked at, to know as to how credible are the grounds for suspicions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements."
As such, the cited precedent would also highlight that the Court should not attach undue importance to imaginary suspicions.
(ii) 2003(1)CTC 308 [ Janki Narayan Bhoir vs. Narayan Namdeo Kadam]. An excerpt from it would run thus:
"8. To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witness has to sign the Will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of the proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of the clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in this evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
(iii) An excerpt from one other decision reported in 1995 (II) CTC 476 [Kashibai and another vs. Parwatibai and others] would run thus:
"10. This brings us to the question of the will alleged to have been executed by deceased Lachiram in favour of his grand-son Purshottam, the defendant No.3. Section 68 of Evidence Act related to the proof of execution of document required by law to be attested. Admittedly, a Deed of Will is one of such documents which necessarily required by law to be attested. Section 68 of the Evidence Act contemplates that if a document is required by law to be attested, it shall not be used as evidence until the attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. A reading of Section 68 will show that "attestation" and "execution" are two different acts one following the other. There can be valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section 63 of the Indian Succession Act, 1925 also lays down certain rules with (C) of Section 63 provides that the Will shall be attested by two or more witnesses each one of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature of mark of the such other person; and each of the witnesses should sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.
As such in this decision also, the evidence required to prove the Will is found highlighted.
B]. The learned counsel for the appellants/defendants cited the following decisions:
(i) 2001[5]CTC 262 -Madras High Court [G.Lalitha vs. G.Ponnurangam]
(ii) 1996(II) CTC 466 Madras High Court [T.Kanniah Rao vs. Inder Rao]
(iii) AIR 1959 SC 443 (1) [H.Venkatachala Iyengar vs. B.N.Thimmajamma and others]
(iv) 1998(I) MLJ 338 Madras High Court [Lakshmi vs. Renuka and others]
(v) AIR 1995 SC 2086 [Vrindavanibai Sambhaji Mane vs. Ramchandra Vithal Ganeshkar and others]
(vi) AIR 1995 SC 1684 [Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) by LRs. And others]
(vii) AIR 1964 SC 529 [Shashi Kumar Banerjee and others vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and others] .
[C]. On the side of the plaintiff, the learned counsel would cite the following decisions:
1. (2008) 16 SCC 785 [Baljinder Singh vs. Rattan Singh]
2. (2008) 16 SCC 799 [Gurram Chakravarthy(2) vs. State of Andhra Pradesh]
3. (2010) 5 SCC 274 [S.R.Srinivasa and others vs. S.Padmavathamma] [D]. Few more decisions also could be cited in this regard.
(i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others]
(ii) 2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another]
(iii) 2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others]
(iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others]
(v) 1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal]
(vi) AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another]
(vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others]
(viii) AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others]
(ix) 2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy]
(x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others]
(xi) 2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others]
(xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph]
14. A cumulative reading of those precedents would unambiguously and unequivocally highlight and spotlight the fact that the court while analysing the evidence relating to the Will should be a court of conscience and virtually the court should place itself in the arm chair of the testator and visualize and scrutinize the recitals therein.
15. The learned counsel for the plaintiff would try to attack the genuineness of the Will by pyramiding his argument thus:
The Will even though purported to have emerged as early as in the year 1975, it had not seen the light of the day and it was only produced before the court, so to say, almost after 20 years. During such two decades, it is glaringly clear as per the evidence of the defendants that the following registered documents emerged, viz., Exs.A2 dated 12.12.1991 and A3 dated 12.12.1991 relating to the sale of item Nos.6, 10, 11 and 12. However, there is no reference to that unregistered Will at all in those documents.
16. In this context, I would like to refer to the precedent of the Hon'ble Apex Court cited by the learned counsel for the plaintiff in Kalyan Singh vs. Chhoti and others reported in (1990) 1 SCC 266 and certain excerpts from it would run thus:
"19. There is yet another circumstances which tells against the genuineness of the Will. The Will purports to have been executed in 1916 and Gangaram instituted the suit in 1959. The Will had not seen the light of the day till the institution the suit. It is not as if Gangaram or his brother or father had no opportunity to produce the will to assert rights over the property in question. The plaintiff has stated in his evidence that his father Narayan handed over the will to him. Narayan was therefore, aware of the execution of the Will. Yet he did not disclose it to the court in the suit against him. His statement was recorded on July 8, 1925 wherein he had admitted that he was only the pujari of the temple and the wife of Baldeo sold the property. He did not say that his son Gangaram became owner of the property under the Will executed by Gaurilal. In the second suit, Bhonrilal set up independent title to the property by adverse possession. That claim was totally destructive of Gangaram's title. It cannot be said that Gangaram was ignorant of that litigation till he filed the suit. His evidence does not lead to that inference. In fact the plaint averments and his statements in the court lead to the contrary. Gangaram, however, made no attempt to produce the will in that suit. In the long period of 43 years, none made any attempt to rely upon the Will against the claim of the darjee community when the community representatives have successfully brought two suits. This would not have been the natural conduct of person if the Will had been really in existence."
At this juncture, it is not out of place to mention that the deceased testator himself was admittedly a document writer and the Will was purported to have been scribed by D4-Venkatesan, the brother of D2 and D3. Over and above that D3 happened to be one of the purchasers of certain items of properties under Ex.A2. Had really the Will been in existence anterior to the emergence of those two sale deeds, certainly Venkatesan, being the purported scribe of the Will would have taken precaution to get the Will specified as their source of title to the property. The seller-D1, as per her, got the right to sell the property only on the strength of that Will. In such a case, the absence of specification of the Will in the deed, leads to suspicion. Over and above that Narayanan, as per Ex.A2 happened to be the purchaser of one other item of suit properties and in that also there is no reference to the said Will. In the sale deed of Narayanan, Venkatesan happened to be one of the attesting witnesses and in the sale deed of Venkatesan, Narayanan happened to be one of the attesting witnesses. As such the following details would further enlighten the factual scenario.
(i) Ex.B9, the Will dated 10.12.1975 was scribed by D4.
(ii) Ex.A2 the sale deed dated 12.12.1991 executed by D1 and D1's husband D2 in favour of D3, which covers item Nos.6, 10, 11 and 12 and in that Venkatesan signed as one of the attesting witnesses. On the defendants' side, it was sought to be clarified that D2 was also added in Ex.A2 as one of the vendors because power supply was in his name.
(iii) Ex.A3 the sale deed dated 12.12.1991 was executed by Kasturi Ammal, in favour of Venkatesan and in that Narayanan signed as one of the attesting witnesses.
17. It is therefore pellucidly and palpably clear that the purchasers D3 and D4 of the properties from D1 must have had full knowledge of the fact that only on the strength of the unregistered Will Kasturi Ammal executed the sale deeds and in such a case, without any rhyme or reason, they failed to specify the said Will Ex.B29 as their source of title deed in the said sale deeds.
18. The learned counsel for the defendants would try to explain and expound by pointing out that since they were all close relatives and they had full knowledge about the family scenario they thought of not getting so specifically specified in the sale deeds about the Will and over and above that they thought that the property got by Kasturi Ammal was nothing but her Streedhana property, in loose sense of the term "Streedhana".
19. Whereas the learned counsel for the plaintiff would torpedo such an argument by pointing out that the question of the purchasers assuming and presuming as though the properties happened to be the "Streedhana" properties of Kasthuri Ammal was a well-neigh impossibility. Narayanan and Venkatesan knew that the properties originally belonged to Ramabadra Naidu and in such a case, the question of they assuming as though Kasturi Ammal got the property as the "Streedhana" property and that on that ground they did not get specified about the Will in the sale deeds, is too big a pill to swallow.
20. In my considered opinion, the non-specification of the unregistered will in the sale deeds lead to the suspicion that the said unregistered will might not have emerged as on the date of the emergence of those two sale deeds.
21. The learned counsel for the defendants would strenuously argue that the defendants 4 and 5 being the purchasers had no axe to grind in the matter as they are close relatives. Admittedly, the plaintiff himself gave a clean chit to them by stating that they were not in inimical terms with the plaintiff and in such a case they might not have helped in the alleged fabrication of the unregistered will. Precisely as per the counsel for the defendants, his clients had no necessity to hatch any conspiracy or a huis clois to fabricate any Will.
22. Whereas the learned counsel for the plaintiff would convincingly and legally put forth his argument to the effect that the factual scenario here would portray and project that D3 and D4 were in dire necessity to participate in the fabrication of the said unregistered Will because if such a Will had not been fabricated, then there would not have been any basis at all to file a written statement and contest the suit.
23. Here, there could be no question of any lack of knowledge on the part of D3 and D4 about the purported Will at the time of they purchasing the property, would arise, had really Ex.B29 existed as narrated by them. It was Venkatesan, who scribed the Will according to the defendants. If that be so, Venkatesan should have got it specified in the sale deed. Narayanan is none but the brother of Venkatesan and in fact Venkatesan signed as one of the attesting witnesses in that sale deed of Narayanan. As such, the suspicious circumstances in this case are so strong that it would not be appropriate for this court to take the versions of the defendants relating to the Will for gospel truth.
24. Over and above that while getting transfer of patta in the name of D1, there is no miniscule or jot of evidence to show up that the said unregistered Will was referred to in their application for applying for change of patta. For some people, getting order of change of patta, might be a low hanging fruit and that is why consistently this court held that mere change of patta would not lend any benefit for the holder of patta in proving his title. Normally, the revenue authority was expected to demand some document in the name of the applicant for changing the patta. Actually, what transpired at that time was not established before the court. The defendants also did not take steps in order to buttress and fortify their claim that on the strength of the Will they got the patta changed. Scarcely, could it be stated that these circumstances should not be taken into consideration.
25. Had really such unregistered Will emerged during the year 1975, then certainly at the time of getting the patta changed they would have divulged it or disclosed it to the authority concerned and that would have rendered support to the contentions of the defendants. But, in this case, such evidence is totally absent.
26. I would like to refer to the trite proposition of law that patta would not confer title. In this connection, the following decisions could be cited fruitfully:
(i) 1973(1) MLJ 44 [Velayudham Pillai vs. Sandhosa Nadar and others]
(ii) 1995(1) MLJ 426 [Kuppuswami Nainar vs. The District Revenue Officer, Thiruvannamalai and others]
(iii) 1998 (I) CTC 630 in Srinivasan and six others Vs. Sri Madhyarjuneswaraswami, Pattavaithalai, Tiruchirapally District by its Executive Officer at Pattavaithalai Devasthanam and five others.
(iv) 2008(7) MLJ 1183 [Venkatachalam (died) and others vs. Rajammal and others]
(v) 2009(3) CTC 493 R.Pannerselvam vs. A.Subramanian and another]
27. Simply because after the death of Ramabadra Naidu patta was got changed, in the name of Kasturi Ammal, that would not in any way enure to her benefit to contend that she became the absolute owner of the suit properties 1 to 14.
28. The learned counsel for the defendants would also contend that the plaintiff has not raised even his little finger as against the said sale deeds Exs.A2 and A3 during the year 1991 for which the learned counsel for the plaintiff would rightly point out that there is nothing to exemplify and indicate that the plaintiff had knowledge of those sale deeds; whereupon the learned counsel for the defendants would argue that it is the case of the plaintiff that he was allegedly in joint possession of the properties and that he had been all along with D1 and D2; wherefore, it would not lie in the mouth of the plaintiff to plead total ignorance of those sale deeds and subsequently assert his alleged right and that too, after keeping quite for a long time. Before mulcting the plaintiff with the doctrine of acquiescence or connivance there should be some semblance of evidence on the side of the defendants to establish and convey that the plaintiff had the knowledge of the sale deeds Ex.A2 and A3. The written statement is silent as silence could be relating to the knowledge of the plaintiff in this regard.
29. The plea of discharge of the debt, is concerned, the learned counsel for the defendants would submit that it is D1 and D2, who discharged the debts of the testator in compliance with the mandates as contained in the Will. According to the defendants, even though the plaintiff contended that he jointly discharged the debts of the propositus, nevertheless he had not produced any shred or shard of evidence in that regard. But the same plaintiff in another breadth lying through his teeth, would contend that no debt was incurred by Ramabadra Naidu at all. As such, according to the defendants the plaintiff has not approached the court with a consistent case of his own.
30. At this juncture, I would like to observe that regarding the discharge of debts of Ramabadra Naidu, it should be considered only at the final decree stage. No doubt, I am fully aware of the fact that on the defendants' side, such an argument concerning discharge of debt was put forth so as to probablise their case that the plaintiff approached the court with false facts. Even assuming that there was discharge of debt by D1 and D2, there is no presumption on that ground that the plaintiff should be non-suited.
31. Incontrovertibly and unarguably, the defendants 1 and 2 have been in management of the suit properties 1 to 14 and in such a case, the discharge of debt by D1 and D2 from out of the income derived from the suit properties cannot be construed and discerned as though by their conduct the plaintiff could be non-suited.
32. There is no gainsaying or controverting the fact that during final decree stage all these facts should be gone into and that too at the time of apportioning the income. If the plaintiff had not contributed anything towards discharge of the debt, then proportionately that would be adjusted in the share of the plaintiff over the income concerned. A fortiori these are all matters to be dealt with only at the final decree stage.
33. Arguments have been advanced on both sides relating to the joint living.
34. I would like to extract the relevant portion in the written statement:
4. ..........@ nkYk; uhkgj;jpu eha[L gytpjkhd fld;fis th';fp gpur;ridapy; ,Ue;jhh;/ mtUf;F 1.2 gpujpthjpfs; jhd; cjtp bra;jhh;fs;/ nkYk; jha; ,y;yhky; ,Ue;j thjpia 1.2 gpujpthjpfs; jh';fs; bry;Yk; ,lbky;yhk; miHj;Jr; brd;W ey;ygoahf tsh;j;J guhkhpj;J jpUkzk; bra;J itj;jhh;fs;/ 5/ nkw;go uhkgj;jpu eha[L fhyhe;jpuj;jpw;F Kd;ghf gytpjkhd fld;fs; ,Ue;jjhYk;. ,J ehs; tiu 1. 2 gpujpthjpfs; md;g[lDk;. ghrj;JlDk;. guhkhpj;J te;jjhYk; jd; Ma[Sf;F gpwF jd; brhj;Jf;fis 1. 2 gpujpthjpfs; kl;Lnk mila ntz;Lk; vd;W vz;zk; bfhz;L nkw;go uhkgj;jpu eha[L ,th;fs; kPJs;s md;ghYk;. Ghr;jhYk; 10/12/1975 njjpapl;l kjpg;g[ fhzhj capy; rhrdj;ij vGjp itj;jhh;/ me;j capy; rhrd c&uj;Jg;go nkw;go uhkgj;jpu eha[L kfdhd 1k; gpujpthjp kl;Lnk midj;Jr; brhj;Jf;fisa[k; jhdhjp tpdpka tpf;fpua';fSf;F nahf;fpakha; Mz;L mDgtpj;Jf; bfhs;s chpik bfhLj;J tpl;L fhykhfp tpl;lhh;/ nkw;go capy; nkw;go uhkgj;jpu eha[Ltpd; filrp capyhFk;/ me;j capy; rhrdk; ,e;j Md;rUld; jhf;fy; bra;ag;gLfpwJ/ ,ij ,e;j MdrhUld; xU m';fkhf tpkh;r;rpf;f ntz;oaJ/@ A mere running over the aforesaid version would display and demonstrate that the plaintiff, and the defendants 1 and 2, were almost living together. However, the learned counsel for the defendants inviting the attention of this court to the deposition of DW1 as well as the deposition of PW1 would try to project a case as though it was not that all along the plaintiff was with the defendants, but he was away also for some time. But one fact is clear that the plaintiff, being an adult male member, even for argument's sake, is taken that for some time, he was away and subsequently, he came back and started living in the suit house, that would not come in the way of the court discerning and holding that there has been jointness in the enjoyment of the suit properties by the plaintiff and D1.
35. Indisputably, the plaintiff after marriage was living in the old suit house, which is adjacent to the house wherein D1 and D2 were living. As such this important fact should not be lost sight of. The defendants at no point of time ousted the plaintiff from enjoying any one of the joint properties and had they really ousted the plaintiff from enjoying the properties then the question might arise as to why the plaintiff despite such ouster, kept quite without setting the law in motion. But here, the factual scenario is not to that effect at all. The defendants, wherefore, simply forgetting this abysmal weakness in their plea based on Ex.B29 tried to punch above their weight, which failed to carry conviction with this court.
36. The precedents cited supra would point up and show up that in respect of the unregistered Will, if there is inordinate delay in bringing to limelight or disclosing or divulging the same, it should be looked askance at. Seldom could it be expected legally that the beneficiary under the Will should be as keen as mustard in disclosing the will at a rocket speed soon after the death of the testator. However, if the beneficiary despite arisal of demanding necessity, fails to disclose the unregistered Will, then his conduct in not disclosing such unregistered Will, would certainly be proved to be a grave suspicious circumstance. Here, it is not as though no necessity arose for D1 to disclose or divulge that Will. At the time of getting the patta in her favour she ought to have disclosed or divulged that Will, but there is nothing to show that she disclosed or divulged that Will. At the time of execution of the sale deeds also, she was expected to disclose or divulge the Will but she failed to do so. As such, all these facts and circumstances bespeak and betoken, demonstrate and prove against the genuineness of the said Will.
37. The learned counsel for the defendants invited the attention of this court to the suggestion made by the plaintiff to DW1; based on that suggestion, it was argued that the signatures of the testator were admitted ones and that would be sufficient for shifting to some extent the burden on the plaintiff. No doubt, PW1 in his deposition supinely disputed the genuineness of the signatures of the testator in the Will. Per contra, such a suggestion as referred to supra was made on the plaintiff's side at the time of cross examining DW1.
38. In my considered opinion, mere admission of signatures of the testator in two papers would not relieve the propounder of the Will, from proving the Will in accordance with Section 68 of the Indian Evidence Act and that legal position could be understood from the precedents cited supra. The learned counsel for the defendants in all fairness would state that, that is the legal position. However, he would hasten to add that in view of the admission of the signatures of the testators in the Will, the Court could very well infer that the testator in all probabilities might have executed the Will in favour of his daughter who undoubtedly, and indisputably looked after the testator exclusively during his old age.
39. The learned counsel for the plaintiff would refer to the deposition of DW5 Kannaiyan and develop his argument that Kannaiyan is closely related to Thiruvenkadam as Thiruvenkadam's son married Kannaiyan's daughter. As such, Kannaiyan happened to be the "Sambhandi" of D2-Thiruvenkadam and that would also probabilise the case of the plaintiff and highlight that the Will is not free from doubt. So far as DW4-Sethuraman is concerned, he is a distant relative of the family of Ramabadra Naidu.
40. There is also one other doubt arises in the mind of the court. Had really Ramabadra Naidu as narrated by the defendants voluntarily executed the Will, there is no plausible explanation as to why it was not got registered. I am fully aware of the fact that the Will is not compulsorily registrable. However, the testator himself happened to be a document writer and the scribe happened to be a teacher and near relative also; however no step was undertaken to get registered the Will.
41. A poring over and perusal of the recitals in the Will would glaringly and pellucidly, palpably and obviously and that too axiomatically make the point clear that the Will is conspicuous of the absence of an averment relating to the exclusion of the testator's Class I heir, viz., the plaintiff.
42. The learned counsel for the defendants would try to explain and expound by pointing out that normally if an advocate scribes the Will he would take care to incorporate certain averments relating to the exclusion of the heir apparent, for which the learned counsel for the plaintiff would appropriately highlight the point that the scribe D3 herein is not an ordinary person, as tried to be projected by the defendants but he is a teacher by profession and the testator himself happened to be a document writer. In such a case, the absence of reasons for excluding the plaintiff who happened to be the Class I heirs gains significance and it is not a mere pocu curante one.
43. What I could glean from the evidence is that there is nothing to indicate and exemplify in the evidence itself that the testator and the plaintiff were at logger heads and that they could not see eye to eye, but they were cheek by jowl and so close that the grand father was affectionate towards the grandson, viz., the plaintiff and in fact it is virtually the case of the defendants also. Wherefore, the testator as projected by the plaintiff would have had no reason to exclude the latter from succeeding to the suit properties 1 to 14.
44. Not to put too fine a point on it, in this factual matrix and by viewing the matter holistically and that too in the light of the decisions referred to supra, I would like to disbelieve the Will and the first appellate court correctly disbelieved the Will. However, the learned counsel for the defendants would invite the attention of this court to the first portion of para No.11 of the judgment of the first appellate court as under:
"11. At the outset, I would like to mention that Ex.B29 an un-registered will has not been mentioned in the written statement. Further the 15th item was purchased by the second defendant only in the year 1991. ................."
45. The learned counsel for the defendants would comment upon it by pointing out that subliminally the first appellate court had some prejudice against the unregistered Will. In the written statement, there is reference to the unregistered Will; but the first appellate court erroneously specified as though the defendants' made no such mention in the written statement about the Will. Because the first appellate court inadvertently struck a wrong note by stating that Ex.B29 was not referred to in the written statement, the entire finding on fact concerning the Will by the first appellate court cannot be disregarded on that ground only.
46. A fortiori, I am of the view that no importance could be attached to the said unregistered Will, Ex.B29 in the facts and circumstances of this case.
47. I would like to recollect and call up the following maxim:
In re dubia magis infitiatio quam affirmatio intelligenda In a doubtful matter, the negation is to be understood rather than the affirmation. The party who adduces better evidence would have better claim. As such I am of the view that scarcely the following maxims, could be cited in support of the Will.
(a) Verba generalia genaraliter sunt intelligenda General words are to be understood generally.
(b) Verba ita sunt intelligenda, ut res magis valeat quam pereat - Words are to be so understood that the matter may have effect rather than fail.
48. In the wake of suspicion on stronger footing, the dubious Will cannot be tried to be countenanced as a genuine one.
49. Regarding item No.15 of the suit property is concerned, the learned counsel for the plaintiff would vehemently put forth his argument that D2, being the husband of D1 had no source of income to purchase the property during the year 1991 and his plea that he raised loan from State Bank of India, Permanallur Branch and purchased it and thereafter sold the said property and discharged the debt is nothing but a load of baloney, fraught with falsity and that it is a baseless plea. He would also impeach Ex.B5 as a piece of document not capable of buttressing and fortifying the stand of D2 that he availed loan from the State Bank concerned for purchasing item No.15.
50. Whereas the learned counsel for the defendants would convincingly and appropriately, legally and appositely point out that the plaintiff forgetting for a moment that the burden of proof is on him, is simply trying to mulct the defendants especially D2 with liability to prove the genuineness of the sale deed in his favour in respect of item No.15.
51. At this juncture, I would like to refer to the decisions cited on the side of the plaintiff:
1. (2007) 1 SCC 521 [Appasaheb Peerappa Chamdgade vs. Devendra Peerappa Chamdgade and others]
2. AIR 1961 SC 1268 [Mallesappa Bandeppa Desai and others vs. Desai Mallappa and others]
3. 2012(1) CTC 128 [Madras High Court] [Malla Naicker @ Singari and two others vs. Jeeva (minor) and two others], which are all concerning the disputes relating to joint family. But here, no such joint family concept could be ushered in.
52. I would like to fumigate my mind with the following maxims:
(i) affirmantis est probare He who affirms must prove.
(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.
In connection with this, there is one other maxim, which cannot be lost sight of.
Favorabiliores rei potius quam actores habentur Defendants are held to be in a more favourable position than pursuers.
Accordingly, if viewed, it is the plaintiff who affirms and asserts that item No.15 of the suit property was purchased in the name of D2 from and out of the income derived from this joint property, so to say, item nos.1 to 14; in such a case, precisely there should be evidence on the side of the plaintiff.
53. In this regard, the learned counsel for the plaintiff would advance his argument succinctly to the effect that it is anybodys case that the item Nos.1 to 14 might have fetched at least Rs.500/-per year as savings out of the income or by way of savings and from out of that amount in all probabilities item No.15 might have been purchased by D1 in the name of D2, and that D2 could rightly be labelled or dubbed as a man having no known source of income to the extent of Rs.23,500/-, which constituted the sale consideration for purchasing the property as contained in Ex.A1.
54. Whereas the learned counsel for the defendants would appropriately and appositely, convincingly and correctly would draw the attention of this court to the evidence and highlight and point up that only in the year 1994, D2 retired as an Officer of the Co-operative society; item No.15 was purchased during the year 1991 and if that be the case, the plaintiff cannot try to project him or paint him as a man of straw or an abbreviated piece of nothing; such a reference to D2 by the plaintiff is nothing but doing violence to his status. There is no denial of the fact that D2 retired as an Officer in a co-operative society and only during the year 1991, the property being item No.15 was purchased.
55. At this juncture, the learned counsel for the plaintiff would hasten to submit that the matter would have been different had D2 not pleaded in the written statement that he purchased item No.15 from out of the loan availed from the bank and that he discharged the loan only by selling item no.15.
56. No doubt, I could see the ratiocination behind the argument of the learned counsel for the plaintiff that D2 having chosen to commit himself in black and white in the written statement setting out certain facts, the burden was on him to prove it.
57. I would like to refer to the maxim cited supra relating to the favourable position of the defendants in the litigative process.
58. To the risk of repetition and pleonasm but without being tautologous, I would like to highlight the fact that simply because D2 in the written statement stated so, that it does not mean that he has to prove his plea to the hilt. No doubt, the onus of proof is ambulatory. It has to be seen as to whether the initial burden to prove that item No.15 of the suit property was purchased from the joint income derived out of the joint properties in item Nos.1 to 14 was discharged by the plaintiff for which, there is no iota or shred, jot or pint of evidence. Nothing could be presumed unless law enables the court to presume.
59. Here, the learned counsel for the plaintiffs argument was to the effect that it could be presumed that sufficient extra income to the tune of Rs.23,500/- might have accrued from out of the joint properties and out of that item No.15 might have been purchased. As such, it cannot be held in favour of the plaintiff in the absence of any legal presumption available in his favour.
60. The contention on the side of the plaintiff that Ex.B5 is not even worth the paper on which, it is found written and it has no probative force of its own, has to be considered in the facts and circumstances of this case.
61. No doubt, Ex.B5 is the sole document, which D2 would rely upon for buttressing and fortifying his contention that he availed loan from the State Bank and purchased item No.15. Ex.B5 would convey and connote, display and demonstrate that it is a pro-note executed by D2 in favour of the Bank in connection with the loan availed by him.
62. It is a common or garden principle of law as well as fact that for availing bank loan innumerable documents should be executed by the borrower in favour of the lender.
63. D2 cannot be expected to produce all those loan documents. In my considered opinion, in this case, D2 by way of abundanti cautela did choose to produce Ex.B5. The matter would have been different had the primary burden was on D2.
64. But, in this case, only for the purpose of projecting himself that he was not hiding anything from the purview of the court, he did choose to produce Ex.B5, and wherefore that could be taken as a semblance of evidence. He being the defendant, on whom the burden of proof did not get shifted, nevertheless did choose to produce Ex.B5. While the plaintiff raising his accusative finger as against D2 for non-production of clinching document relating to the loan availed and also the discharge of the loan, the former failed to take steps to summon the bank official, so as to highlight that the defendants plea was false. Having failed to do so, the plaintiff cannot simply call upon the court to believe his ipse dixit for gospel truth and declare item No.15 as the joint property of the plaintiff and D2 for being partitioned equally.
65. Sedulously and meticulously adhering to the legal procedures certain facts have to be proved before the court. Here obviously and axiomatically the plea of the plaintiff did not stand established in respect of item No.15.
66. No doubt, the sale deed executed by D2 regarding item No.15 has not been produced. Once again to the risk of repetition, and pleonasm, I would like to point out that nothing prevented the plaintiff to secure the certified copy of such sale deed and produce it to prove anything to the contrary but that also was not done. However, the first appellate court, simply without looking into all those legal as well as factual aspects held as though item No.15 also was the subject matter of partition, which requires interference in second appeal.
67. In the result, I would like to hold that item No.15 of the suit property cannot be taken as the joint property of the plaintiff and D1.
68. In order to disambiguate the ambiguity if any, there shall be partition of item Nos.1 to 14 equally between the plaintiff and D1, and item No.15 shall be excluded from partition as it is the self-acquired property of D2.
69. Accordingly, the substantial questions of law are answered to the following effect.
(i) The substantial question of law No.1 is decided to the effect that the finding of the first appellate court that Ex.B29, the Will executed by Ramabadra Naidu should be treated as a suspicious document is legally sustainable in view of the evidence of D.Ws.3 to 5.
(ii) The substantial question of law No.2 is decided to the effect that the finding of the first appellate court that suit item 15 is not the self acquired property of the second appellant is not legally sustainable inasmuch as the second appellant was employed in a co-operative society, and from that income he purchased the suit 15th item.
70. In the result, this second appeal is partly allowed and the judgment and decree of the first appellate court is modified to the extent indicated above. However, there shall be no order as to costs.
22.02.2013 vj2 Index: Yes Internet: Yes To
1. The Principal District Judge, Tiruvannamalai
2. The Subordinate Judge, Cheyyar G.RAJASURIA,J.
vj2 S.A.No.1308 of 2001 22.02.2013