Madras High Court
Backiam @ Backia Lakhsmi vs S.Sabarinarayan ... 1St on 8 April, 2022
Author: R.N.Manjula
Bench: R.N.Manjula
A.S.(MD)No.40 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 09.03.2022
Pronounced on : 08. 04.2022
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
A.S.(MD)No.40 of 2016
Backiam @ Backia Lakhsmi ... Appellant/1st Defendant
Vs.
1.S.Sabarinarayan ... 1st Respondent/Plaintiff
2.Marthanayakanpatti Primary Agricultural
Co-operative Bank,
Through its Special Tahsildar,
Door No.81, Kulloorsanthai,
4th Ward, Aruppukottai,
Virudhunagar District. ... 2nd Respondent/2nd Defendant
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, against
the judgment and decree in 34 of 2009 rendered by the Sixth Additional District
Judge, Madurai on 25.11.2015.
For Appellant : Mr.M.Sricharan Rangarajan
For Mr.P.Mahendran
For Respondents : Mr.S.Parthasarathy for R1
https://www.mhc.tn.gov.in/judis
1/28
A.S.(MD)No.40 of 2016
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and decree of the learned VI Additional District Judge, Madurai, dated 25.11.2015 made in O.S.No.34 of 2009;
2.The appellant is the first defendant in the suit; the first respondent/plaintiff filed the suit for declaring that the plaint B schedule property absolutely belongs to the plaintiff and for recovery of possession and also for passing preliminary decree for partition of plaintiff's half share in ‘C’ and ‘D’ schedule properties along with the relief of retention of accounts in respect of ‘C’ schedule property and for past mesne profits of Rs.72,000/- and future mesne profits in respect of B schedule properties;
3.The plaintiff is the husband of the deceased Saraswathi; the first defendant is the sister of the deceased Saraswathi; the second defendant is said to be tenant in one of the schedule properties; the case of the plaintiff is that the suit properties were belonged to Krishnasamy Chettiar; Krishanasamy Chettiar had one son and two daughters; Saravanan, son of Krishnasamy Chettiar passed away on 25.08.1993 as a bachelor; Ramanujam Ammal, wife of Krishnasamy https://www.mhc.tn.gov.in/judis 2/28 A.S.(MD)No.40 of 2016 Chettiar died on 16.07.1997; the second daughter of Krishnasamy Chettiar namely, Saraswathi married the plaintiff on 04.09.1997 and she died on 04.12.2001; Krishnasamy Chettiar also died on 11.01.2001; According to the plaintiff, Krishnasamy Chettiar purchased the suit properties in his name, wife's name and his son's name by virtue of several sale deeds; he was in enjoyment of all the suit properties as his absolute properties; during the life time of Krishnasamy Chettiar he executed a Will/Ex.A1 dated 09.07.1998 in respect of suit properties; after the demise of Krishnasamy Chettiar on 11.01.2001, the said Will came into effect; the said Will is the last Will executed by Krishnasamy Chettiar; in pursuance of the above said Will, the two daughters of Krishnasamy Chettiar namely Saraswathi and Backiam @ Backia Lakshmi/ the first defendant had acquired the suit properties and they were in joint enjoyment; as per the Will, the ground floor of suit ‘A’ schedule was given to the first defendant and the first floor of suit ‘A’ schedule, which is mentioned as ‘B’ schedule in the Will was given to the plaintiff's wife; suit ‘C’ schedule, which is mentioned as ‘B’ schedule in the Will was a lodge; both the sisters have to run the business and share the profits and expenses; suit ‘D’ schedule properties are shown as ‘C’ schedule properties in the Will and items 1 and 2 of the suit ‘D’ schedule properties are the house properties and items 3 and 4 are the vacant site; as per the Will both the sisters have to get equal share in the https://www.mhc.tn.gov.in/judis 3/28 A.S.(MD)No.40 of 2016 same; the daughters of Krishnasamy Chettiar, namely, Saraswathi and Backiam @ Backia Lakshmi were enjoying the suit properties in accordance with the Will; since the second daughter/Saraswathi died on 04.12.2001 without any issues, as per Hindu Succession Act, the husband of deceased Saraswathi, the plaintiff/Sabarinarayan is entitled to her properties; even during the life time of Krishnasamy Chettiar, the plaintiff and his wife/Saraswathi were living at Trivandrum due to plaintiff's business; hence, the first defendant was managing the suit properties; after the demise of Saraswathi, the first defendant did not give the plaintiff's share in the income derived from suit ‘C’ and ‘D’ schedule properties and the rental income of the ‘B’ schedule properties also enjoyed by the first defendant; despite the plaintiff demanded the first defendant to give his due share, the first defendant refused to give; hence, the plaintiff has filed the suit for the above mentioned reliefs.
4. The first defendant has resisted the suit by stating that in the suit A, B, C and D schedule properties, some of the properties belonged to her mother; some of the properties belonged to her unmarried brother, who predeceased her mother; the properties of her unmarried brother would be inherited by the mother and therefore, Krishnasamy Chettiar has no right to execute any Will in respect of the suit A, B and C (1) of schedule properties; even the alleged Will dated https://www.mhc.tn.gov.in/judis 4/28 A.S.(MD)No.40 of 2016 09.07.1998 also was not duly executed and attested; the said Will was cancelled subsequently both the father and mother of the first defendant executed separate Will by bequeathing life interest over the suit schedule properties in favour of their daughters and after their life time, their male children would inherit the same; the Will dated 09.07.1998 was executed by the father of the first defendant was cancelled and the father executed another Will dated 06.06.1999 and mother also executed another Will dated 05.02.1995; after their demise, the said Wills came into effect; according to that, the first defendant will have life interest; since her sister/Saraswathi, the wife of the plaintiff died issueless, the first defendant and her son namely, R.Ramkumar can only inherit the suit properties; it is false to state that the suit properties were purchased in the name of the first defendant's mother, brother and grandmother just for name sake, but the properties absolutely belonged to Krishnasamy Chettiar; it is also equally false to say that the first defendant was managing the suit properties on behalf of her sister; the plaintiff has filed the suit with an intention to grab the suit properties from the first defendant; the properties purchased by Ramanujam Ammal were from and out of her own income and money got through the sale of her jewels; only after the death of Ramanujam Ammal, the property receipts were issued in the name of Krishnasamy Chettiar; due to the mental agony caused by the plaintiff, the sister of the first defendant namely, Saraswathi died https://www.mhc.tn.gov.in/judis 5/28 A.S.(MD)No.40 of 2016 at young age and after her death, the plaintiff took away all the jewels of Saraswathi worth about several lakhs; the suit properties can be inherited only by the legal heirs of Ramanujam Ammal and Krishnasamy Chettiar; the properties inherited by Saraswathi would also go back to the father's legal heir, since those properties were originally owned by her father's relative; hence, the plaintiff has no relief as prayed for by him; the second defendant is not a necessary party to the suit.
5. Based on the rival pleadings, the learned trial Judge framed the following issues:-
1.Whether deceased Krishnasamy is entitled to execute a Will in respect of his wife's property?
2.Whether the Will dated 09.07.1998 duly executed and attested?
3.Whether deceased Krishnasamy executed a Will dated 06.08.1999 came into effect acted upon?
4.Whether Ramanujam Ammal executed a Will dated 05.02.1995 and died on 06.07.1997 and action upon?
5.Whether the 2nd defendant is an unnecessary and improper party to the suit?
6.Whether proper parties are not added in the suit?
7.Whether the suit is valued properly?
8.Whether the description of the property is correct?
https://www.mhc.tn.gov.in/judis 6/28 A.S.(MD)No.40 of 2016
9.Whether the plaintiff is entitled to declare B schedule property as the absolute property of the plaintiff and entitled for possession?
10.Whether the plaintiff is entitled to ½ share in C schedule and D schedule properties?
11.Whether the plaintiff is entitled to past and future mesne profits with regard to B schedule properties?
12.Whether the plaintiff is entitled to demand accounts for C schedule properties from 1st defendant?
13.To what other relief the parties are entitled to?
14.Whether the suit properties are benami to the deceased Krishnasamy?
15.Whether the suit is barred by Benami Transaction Prohibition Act, 1988?”
6.During the course of trial, on the side of the plaintiff, three witnesses were examined as P.W.1 to P.W.3 and Exs.A1 to A8 were marked; on the side of the defendants, one witness was examined as D.W.1 and no documentary evidence was marked;
7.At the end of the trial, the suit was decreed in respect of all the reliefs except past and future mesne profits in respect of B schedule property; aggrieved over that, the first defendant preferred this Appeal Suit.
https://www.mhc.tn.gov.in/judis 7/28 A.S.(MD)No.40 of 2016
8.Mr.M.Sricharan Rangarajan, learned counsel for the appellant submitted that the trial Court has misguided itself as to the rules of burden of proof and held that the first defendant has to prove that the properties were purchased in the name of her mother and brother on their own money; the alleged Will executed by the deceased Krishnasamy Chettiar was cancelled and it is doubtful; however, the learned trial Judge did not appreciate the same; Krishnasamy Chettiar had only two daughters and his son predeceased him; even without the Will of Krishnasamy Chettiar, the properties would devolve upon both the daughters by way of inheritance and they will get equal share; the contents of the Will did not change that position and hence it is unnecessary and unnatural; the writings in the original Will would speak about the unnatural circumstances only; one of the attested witnesses, namely, Somasundaram stated that he never saw Krishnasamy Chettiar signing the Will and he was asked to sign the Will by the auditor and he did not know anything about it; the trial Court has erroneously held that the deceased Krishnasamy Chettiar was the owner of the suit properties, but actually, they belonged to Ramanujam Ammal; Ex.A7 letter alleged to have written by the maternal grandfather of the first defendant cannot be admitted as evidence without proof through independent evidence; D.W.2 is the power agent of the appellant and he would not have any personal knowledge about the facts of the case; hence, his evidence cannot be treated as https://www.mhc.tn.gov.in/judis 8/28 A.S.(MD)No.40 of 2016 admission; the suit itself is barred by limitation, because the relief of declaration has been sought nearly seven years after the death of Krishnasamy Chettiar; the relief of recovery of possession is a clever drafting of the plaint for the purpose of saving limitation; since the execution of the Will did not change the nature of inheritance, that could only be the handwork of the plaintiff to make the nature of the properties as the self acquired properties of Saraswathi; in view of Section 15(2)(a) of Hindu Succession Act, the veracity of the Will was not proved and the capacity of its executant that he was in sound disposing state of mind was also not established; after the death of Saraswathi, the first defendant alone is entitled to the share of Saraswathi, in view of Section 15(2)
(a) of Hindu Succession Act; as per Section 91 of the Indian Evidence Act, the title deeds in the name of the first defendant's mother and her minor brother should be treated as valid proof that the suit properties are the properties owned by them; in view of the existence of documents for the sale transaction in the name of the first defendant's mother and her brother, no oral evidence in proof of the same is permissible; the trial Court, without appreciating the facts of law, had decreed the suit in favour of the plaintiff and hence, it calls for interference.
9.Mr.S.Parthasarathy, the learned counsel for the first respondent/plaintiff would submit that the plaintiff has proved the execution of the Will even by the https://www.mhc.tn.gov.in/judis 9/28 A.S.(MD)No.40 of 2016 direct admission of D.W.1, who is son of the first defendant; if the first defendant contends that D.W.1 has acted as a power agent and the transaction cannot be within the personal knowledge of D.W.1, the first defendant ought to have subjected herself for cross-examination; the avoidance of the first defendant to come to box would draw adverse presumption against her; suit A schedule property was purchased in the name of the mother of Krishnasamy Chettiar and minor son; Suit B schedule property was purchased in the name of Krishnasamy Chettiar and his then minor son; suit items 2 and 3 in C schedule properties were purchased in the name of Ramanujam Ammal and suit items 1 and 4 in C schedule properties were purchased in the name of Krishnasamy Chettiar; even for the sake of argument, if it is taken that Ramanujam Ammal had inherited the rights of the predeceased minor son, after her death, her husband would have inherited the said right; thus, Krishnasamy Chettiar got title over the suit properties by virtue of his purchase and also as a legal heir of his wife/Ramanujam Ammal; the first defendant did not send any reply to the legal notice/Ex.A6 sent by the plaintiff; apart from that, D.W.3 admitted the execution of Will by Krishnasamy Chettiar to the satisfaction of the Court and thus, the plaintiff proved the Will/Ex.A4; though it is alleged by the first defendant in her written statement that Ex.A4/Will is not the last Will and it has been subsequently cancelled, that was not proved and the allegation made by https://www.mhc.tn.gov.in/judis 10/28 A.S.(MD)No.40 of 2016 the first defendant about the execution of her father's Will dated 06.06.1999 and her mother's Will dated 05.02.1995 was also not proved; the learned trial Judge has rightly applied the law and facts and decreed the suit as prayed for.
10. On the basis of rival submissions, Points for consideration in this Appeal Suit are as follows:-
1.Whether the learned trial Judge is right in his observation that the burden is on the first defendant to prove that her mother and minor brother had sufficient means to purchase some of the suit properties in their names?
2.Whether the relief of declaration as sought for by the plaintiff is barred by limitation?
3.Whether Krishnasamy Chettiar has a right to execute Ex.A4/Will dated 09.07.1998 and whether it is proved to be true?
4.Whether the judgment and decree of the learned trial Judge in decreeing the suit for the reliefs of declaration, recovery of possession and preliminary decree for partition in respect of half share in the suit properties in favour of plaintiff along with other reliefs is fair and proper?
11. The whole suit of the first respondent/plaintiff revolves around Ex.A4 dated 09.07.1998 and this Will contains four schedules of properties. The first respondent/plaintiff would claim that the whole of the suit properties are the self-acquired properties of his deceased father-in-law, namely, Krishnasamy Chettiar and and he executed Ex.A4/Will. And by virtue of the said Will, the https://www.mhc.tn.gov.in/judis 11/28 A.S.(MD)No.40 of 2016 first defendant and her deceased sister, who is wife of the plaintiff were given equal shares. Since the first respondent/plaintiff claims his rights over the suit properties through the Will, the recitals in the Will as to the ancestral document for the suit properties cannot be in dispute. Suit ‘A’ schedule of the property is said to have purchased by Krishnasamy Chettiar on 25.08.1983 by himself along with his wife and his minor son. In the above said sale deed, first and second portions of the house site was purchased by Krishnasamy Chettiar and the third portion of house site was purchased by Ramanujam Ammal on 04.10.1983. So far as first item of ‘B’ schedule property in the Will is concerned, it was purchased by the deceased in the name of his son Saravanan on 25.08.1983. The second item of ‘B’ schedule property was purchased by Ramanujam Ammal on 19.06.1976 by way of a registered sale deed. First item of ‘C’ schedule property was purchased in the name of Natchiyar Ammal, who is the mother of Krishnasamy Chettiar on 03.01.1975. The second and third items of C schedule properties were purchased in the name of Ramanujam Ammal by virtue of sale deeds dated 23.02.1975 and 23.09.1972 respectively. The fourth item of ‘C’schedule property was purchased in the name of Krishnasamy Chettiar on 25.05.1974 by virtue of a registered sale deed. The above title deeds in respect of the suit properties would show that the entire suit properties did not stand in the name of Krishnasamy Chettiar. https://www.mhc.tn.gov.in/judis 12/28 A.S.(MD)No.40 of 2016
12. It is not the case of the first respondent/plaintiff that the suit properties are the ancestral properties of Krishnasamy Chettiar. Despite sale deeds in respect of many of the items stood in the name of Ramanujam Ammal and deceased minor son, it is claimed by the first respondent/plaintiff that Krishnasamy Chettiar alone is entitled to sell. It is claimed that he only had purchased those properties in the names of his wife and son. Since the title documents show that many of the items are owned by Ramanujam Ammal and the deceased minor son, Saravanan, it is pleaded by the first respondent/plaintiff that those properties have been purchased by Krishnasamy Chettiar alone and they were enjoyed by him as his absolute properties. Under such circumstances, the learned trial Judge has observed that the first defendant did not plead about the benami transactions and hence, the first respondent/plaintiff did not have any burden to show that the properties were purchased with the income of Krishnasamy Chettiar. When the title of properties stand by virtue of registered document like sale deeds in the name of the person, it is needless to say that law presumes his or her ownership over the same and any one who pleads contrary to that alone has got the burden to prove that despite the property stands in the name of ‘X’ and it does not belong to them for any specific reasons. https://www.mhc.tn.gov.in/judis 13/28 A.S.(MD)No.40 of 2016
13.As per Section 91 of the Indian Evidence Act, when written documents like registered sale deeds are produced, that itself is the proof for the sale transaction and any other oral evidence about the documents should be excluded. Benami Transactions (Prohibition) Act, 1988 prohibits the purchase of property in some one's name with the income of someone else and claim later that the title of the property did not pass in favour of the document holder. It has been already stated that there is no averment as to any joint family stock or joint family income in order to purchase the suit properties in the names of other family members in the capacity of Krishnasamy Chettiar being the karta. No suit can also be filed if the property is held in someone's name as benami for the real person, who supplied the consideration for its purchase. Benami Transactions (Prohibition) Act, 1988 has come into force on 05.09.1988, However, the purchase connecting to the suit properties were made in the year prior to 1988.
14. It is not the contention of the first respondent/plaintiff that the family members like wife, son and mother of Krishnasamy Chettiar stood as beanmi for him. It could be even due to the sweet Will of Krishnasamy Chettiar that he purchased properties in the name of his wife, son or mother for their own benefits. Unless and until, a family member of Krishnasamy Chettiar comes and https://www.mhc.tn.gov.in/judis 14/28 A.S.(MD)No.40 of 2016 claims that it was only due to a joint family arrangement and they were purchased from and out of the joint family stock, the sale deeds cannot be looked otherwise. Krishnasamy Chettiar had never claimed any title in the properties purchased in the name of his wife, son and mother. Even if joint family concept is presumed during the life time of Krishnasamy Chettiar, that could include himself and his son. For the properties standing in the names of Ramanujam Ammal, Saravanan and Natchiyar Ammal, no one else can claim ownership.
15. Admittedly, Krishnasamy Chettiar did not file any suit during his life time to declare those properties as the properties belonging to him. It is true that the permission to depose oral evidence under Section 92 of the Indian Evidence Act, is available if the provisio 1 to 5 of Sec. 92 of Evidence Act is pleaded. But the first respondent/plaintiff ought to plead that even though the properties stood in the name of other persons, they only belonged to Krishnasamy Chettiar. In that case, the burden would be on the shoulders of the appellant/first defendant to prove the same. In this context, it is relevant to refer the decision of the Hon'ble Supreme Courtheld in the case of Valliammal v. Subramaniam reported in [(2004) 7 SCC 233). In the said case it is held as under:
https://www.mhc.tn.gov.in/judis 15/28 A.S.(MD)No.40 of 2016 “There is a presumption in law that the person who purchases the property is the owner of the same. This presumption can be displaced successfully by pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami-holder.”
16. In the case of Anil Rishi v. Gurbaksh Singh reported in [(2006) 5 SCC 558] the Hon’ble Supreme Court has held as under:-
“In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view https://www.mhc.tn.gov.in/judis 16/28 A.S.(MD)No.40 of 2016 of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”
17. So the person who has right to claim is the husband of the document holder on the allegation that he only provided money for the purchase of the property. In this case, Krishnasamy Chettiar is no more and he never claimed that he only provided money to purchase the properties in the names of his wife, son and mother. It has been already stated that even if he had purchased the properties in the name of his wife, son and mother out of love and affection, at the moment when the purchase is complete, the title will pass to the persons in whose name the documents stand. Krishnasamy Chettiar died without making any adverse claim of the properties stood in the names of his wife, son and mother. While so, the plaintiff who is a stranger, cannot come and say that the properties belonged to Krishnasamy Chettiar and the document holders are just name lenders.
18. Before establishing the title of Krishnasamy Chettiar, the plaintiff cannot file a suit to declare that he is owner of the properties on the ground that he had derived title from Krishnasamy Chettiar either by testamentary arrangements or https://www.mhc.tn.gov.in/judis 17/28 A.S.(MD)No.40 of 2016 otherwise. The learned trial Judge without getting ino the foundational facts proved by the first respondent/plaintiff had proceeded to the second step of declaring the first respondent/plaintiff as the owner of the suit properties and it is fundamentally wrong. In fact, the learned trial Judge ought to have framed an issue as to the claim of the first respondent/plaintiff that the suit properties are the properties belonging to Krishnasamy Chettiar and thrown the burden on the first respondent/plaintiff, who had pleaded so to prove. Instead, the learned trial Judge has observed that the burden is on the appellant/first defendant to prove that the mother of the first defendant had purchased the properties with her own money. The above observation of the learned trial Judge goes against the fundamental rules of presumption as to the sale deeds and also the significance of documentary evidence. In fact, the learned trial Judge ought not to have framed the following issue:-
“Whether deceased Krishnasamy is entitled to execute Will of his wife's property?”
19. Because there cannot be any question of entitlement for anyone to execute any Will in respect of the properties belonging to someone else, including his wife. The framing of issue itself in this context is not correct. The additional issues framed by the learned trial Judge are under:-
https://www.mhc.tn.gov.in/judis 18/28 A.S.(MD)No.40 of 2016 “· Whether the suit properties are benami to the deceased Krishnasamy?
· Whether the suit is barred by Benami Transaction Prohibition Act, 1988?”
20. After having framed the above issues, the learned trial Judge had found the first additional issue as unnecessary, because the appellant/first defendant did not raise any pleading as to benami transaction. The very contention of the appellant/first defendant is that her mother is the owner of the suit properties and hence, her father did not have any right to execute the Will. While so, it cannot be expected from the appellant/first defendant that she ought to have made a self-defeating plea that the sale deeds were in the name of benami holder. The above observation of the learned trial Judge shows his lack of understanding about the issues involved and the contentions of the respective parties and also the suitability of issues to the facts of the case. The learned trial Judge ought to have held that the first respondent/plaintiff could not assert any title upon himself without establishing the title in favour of Krishnasamy Chettiar. At the risk of repetition, it is pointed out that Krishnasamy Chettiar did not raise any objection against the title holders by claiming any undue right, though it would have been possible that he had managed the properties on their behalf when he was alive. So Point No.1 is answered in favour of the appellant.
https://www.mhc.tn.gov.in/judis 19/28 A.S.(MD)No.40 of 2016
21. Mr.Sricharan Rangarajan argued that the relief of declaration is barred by limitation since the first respondent/plaintiff has filed the suit seven years after the demise of Krishnasamy Chettiar. It has been already observed that before ever the first respondent/plaintiff claims his title, he ought to have established the title of Krishnasamy Chettiar over the suit properties. Ex.A4/Will on which, the first respondent/plaintiff resists the case itself, would show that many of the properties have been purchased in the names of mother, wife and son of the deceased Krishnasamy Chettiar. Having found that those title deeds were in favour other person than Krishnasamy Chettiar, the first respondent/plaintiff cannot seek his title from these foundational documents by simply alleging that they were the properties belonging to Krishnasamy Chettiar. If Krishnasamy Chettiar had titles to execute Ex.A4/Will in respect of the whole suit schedule properties, there is no need for the first respondent/plaintiff to seek the relief of declaration and he could have straightaway filed a suit seeking for preliminary decree in respect of partition and recovery of possession. Because of the aforesaid fact, the above position does not make any difference in respect of B schedule properties or any other schedule properties. While the origin of the first respondent/plaintiff's suit is on the alleged Krishnasamy Chettiar's title, the foundational resistance of the first respondent/plaintiff is on the basis that the https://www.mhc.tn.gov.in/judis 20/28 A.S.(MD)No.40 of 2016 properties did not belong to Krishnasamy Chettiar. Hence, the relief of declaration is superfluous and not relevant to the facts of the case. In fact, the same cannot arise unless and until the title had been declared in respect of whole of the suit properties in favour of Krishnasamy Chettiar, despite the fact that the sale deeds stood in the name of others. In view of these reasons, it is unnecessary to make a roving enquiry on the point of limitation and the question of limitation has got nothing to do with a prayer, which itself is not maintainable. Thus Point No.2 is answered in favour of the appellant.
22. Now, coming to the execution of Ex.A4/Will dated 09.07.1998, it is needless to say that the right of Krishnasamy Chettiar would be limited only in respect of those properties, for which, he held the titles. First and second portion of A schedule properties in Ex.A4/Will were purchased jointly in the names of Krishnasamy Chettiar and his minor son, Saravanan and his wife, Ramanujam Ammal. The third portion of A schedule properties was purchased in the name of Ramanujam Ammal, who is the wife of Krishnasamy Chettiar. After death of the minor son Saravanan the properties owned by the minor son Saravanan would be inherited by his mother. Since mother being the class-I legal heir excluded his father.
https://www.mhc.tn.gov.in/judis 21/28 A.S.(MD)No.40 of 2016
23. So, subsequent to the death of Saravanan, Ramanujam Ammal would be entitled to the properties of Saravanan along with the properties purchased in her own name. Though it is claimed by the appellant/first defendant that Ramanjam Ammal executed the Will, it was not produced before the Court. Neither the document which is said to have cancelled Ex.A4 and another Will executed by Krishnasamy Chettiyar was also not produced. So far as the properties owned and inherited by Ramanujam Ammal, it can only be presumed that they did not have any testamentary arrangements prior to her death. There is no dispute that Ramanujam Ammal predeceased her husband, namely Krishnasamy Chettiar. Subsequent to the death of Ramanujam Ammal, her properties would devolve upon her husband and two daughters and each one would have got 1/3rd share in both the properties acquired and inherited by Ramanujam Ammal.
24. The son of the first defendant was examined as D.W.1 in his capacity as power agent. During his examination, he admitted that Ex.A4 Will was executed by his grandfather/Krishnasamy Chettiar. Though it is argued by the learned counsel for the appellant that D.W.1 being the son of the first defendant and young man, he did not know about the facts of execution and he cannot https://www.mhc.tn.gov.in/judis 22/28 A.S.(MD)No.40 of 2016 speak anything about that from his personal knowledge and hence his admission as to the execution of the Will cannot be given with any evidentiary effect against the appellant/first defendant. In such case, the appellant/first defendant ought to have examined herself by coming to the box. Even the pleadings of the appellant/first defendant would say that Ex.A4 Will was cancelled. That only presupposes the existence and execution of Ex.A4 to the knowledge of the appellant/first defendant. Though it is needless for her to come and speak about the title of her mother in view of the production of the documents by the plaintiff himself and on his own admission that many of the properties are purchased in the names of Ramanujam Ammal and minor son, Saravanan, the appellant/first defendant ought to have examined herself as a witness with regard to her personal knowledge about the execution of Ex.A4. The non-examination of the first defendant would not be of no negative consequence as against those properties, for which, Krishnasamy Chettiar himself did not have any title to execute any document like Will.
25. But as against the properties purchased in the name of Krishnasamy Chettiar or acquired by him by way of inheritance from his wife and found in Ex.A4/Will, adverse presumption can be taken against the appellant/first defendant that Krishnasamy Chettiar had executed a Will in respect of those https://www.mhc.tn.gov.in/judis 23/28 A.S.(MD)No.40 of 2016 properties. Krishnasamy Chettiar had included large properties than what actually belonged to him. His power to make any testamentary disposition can be limited to only that extent for which he had title by way of purchase and inheritance. So, even if Ex.A4 is proved to be true, its validity can be restricted only in respect of those properties.
26. At the risk of repetition it is made clear the right of Krishnasamy Chettiar, he had acquired 1/3 share along with his daughters in the properties of his wife Ramanujam Ammal. In view of the above reasons, by virtue of Ex.A4 Will, the first respondent/plaintiff and the appellant/first defendant would get half share each in the properties purchased and stood in the name of Krishnasamy Chettiar and also in the 1/3rd share inherited by Krishnasamy Chettiar from Ramanujam Ammal. Ex.A4-Will can not be extended in respect of the rest of the properties.
27. Remaining 2/3rd share in the properties of Ramanujam Ammal would have been inherited by Saraswathi and the first defendant. Saraswathi died issueless. In view of sec. 15(2)(a) of the Hindu Succession Act, on the death of Saraswathi her 1/3 share of her mother’s property would revert back to the heirs of her father’s legal heirs. Better clarification can be seen under Section 15 of the Hindu Succession Act, which reads under:
https://www.mhc.tn.gov.in/judis 24/28 A.S.(MD)No.40 of 2016 ‘15 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16.
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1)-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband’.
28. Since half share in the properties held in the name of Krishnasamy Chettiar and ½ share out of 1/3rd share inherited by Krishnasamy Chettiar from his wife namely Ramanujam Ammal were bequeathed in such a way that both of his daughters get equal share, there cannot be any difficulty in fixing the shares of https://www.mhc.tn.gov.in/judis 25/28 A.S.(MD)No.40 of 2016 the respective parties. In view of Section 15(2)(a) of the Hindu Succession Act, if there is no Will the share of Saraswathi would have gone back to her father’s heir, excluding her husband who is the plaintiff herein.
29. After the Will came into effect, the above mentioned properties eligible to be bequeathed by virtue of Ex.B4 Will would become the self-acquired properties of Saraswathi. Or otherwords, in the absence of the Will the right of Sarawathi in the same properties given to her as gift would have only attained the character of the property acquired by inheritance. In such case, sec. 15(2)
(a) would have played a role to send back the properties to the heirs of her father. Since the operation of sec.15 (2) (a) has its grip only on the properties acquired by inheritance, the Ex.B4 Will is the game changer which has changed the character of the property from inheritance to self-acquisition.
30. Such self-acquisition of the deceased wife of the plaintiff would be only in respect of half share in the properties held in the name of her father and half share out of 1/3rd share inherited by Krishnasamy Chettiar from her mother. Since the plaintiff being the husband of his deceased wife Saraswathi, he would become her legal heir as per sec. 15 (1) (a) of the Act and he can inherit the same. Only in respect of these rights, the plaintiff is entitled to get any a https://www.mhc.tn.gov.in/judis 26/28 A.S.(MD)No.40 of 2016 relief of preliminary decree for partition and separate possession. Since the lodging business has lost its charm after the pandemic and modern buildings predominantly replaced the old lodges. Thus, Point No.3 and 4 are answered against the appellant.
31. In the result, this Appeal Suit is partly allowed and the judgment and decree of the learned VI Additional District Judge, Madurai, passed in O.S.No.34 of 2009 is modified to the effect that the plaintiff is entitled to get a decree for preliminary decree for partition in respect of ½ share of the suit properties, which are purchased in the name of Krishnasamy Chettiar and 1/6th share in respect of the properties of Ramanajum Ammal. This would include the properties purchased or inherited by Ramanujam Ammal at the death of her minor son Saravanan and the suit is dismissed in respect of other reliefs. No costs.
08.04.2022 Index : Yes / No Internet : Yes/ No ias To:
The VI Additional District Court, Madurai.
https://www.mhc.tn.gov.in/judis 27/28 A.S.(MD)No.40 of 2016 R.N.MANJULA, J.
ias Copy to:
The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.A.S.(MD)No.40 of 2016
08.04.2022 https://www.mhc.tn.gov.in/judis 28/28