Madras High Court
P.Kalyanasundaram vs P.Saraswathy (Died) on 19 August, 2005
A.S.No.734 of 2009 1/51
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 01.11.2021
Delivered on : 22.12.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.734 of 2009
1.P.Kalyanasundaram
2.Ponnammal
3.K.Gopinath
4.Minor K.Vimalnath ...Appellants
Vs
1.P.Saraswathy (died)
2.D.Poongothai
3.Subbalakshmi
4.S.Shanmughapandian ...Respondents
Prayer: Appeal filed under Section 96 of the read with Order XLI Rule 1
of CPC, to set aside the judgment and decree dated 19.08.2005 in
O.S.No.179 of 2005 on the file of the District and Sessions Court (Fast
Track Court, No.2), Coimbatore.
https://www.mhc.tn.gov.in/judis
A.S.No.734 of 2009 2/51
For Appellants : Mr.V.Ramesh
For R3 : Mr.N.L.Rajesh, Senior Advocate for
Mr.Mukund Rao
For R2 : Mr.P.Dineshhkumar for
Mr.S.Ramesh Kumar
JUDGMENT
The defendants 1 to 4 in a suit for partition and declaration are the appellants before this Court. The parties for the ease of understanding are referred to in the same ranking as before the trial Court, namely, the learned Additional District Judge cum the Judge, Fast Track Court No.II, Coimbatore, before whom, the plaintiffs had filed a suit in O.S.No.179 of 2005.
PLAINTIFFS' CASE:-
2. For a better appreciation of the case on hand, it is necessary to set out the genealogy of the family.
https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 3/51 Father name not mentioned Muthusamy (di e d) Kaliappan (di e d Rangasamy (di e d K.M.Palanisamy Saraswathy (1st Plaintiff) ( Kalyanasundaram Poongothai Subbulakshmi (1st Defendant) (2nd Plaintiff) (3rd Plaintiff) Ponnammal (2nd defendant) Gopinath Vimalnath (3rd defendant) (4th defendant) 5th Defendant: Purchaser
3. The plaintiffs had filed the above referred suit for the following reliefs:-
“a. for partition of the suit “A” to “D” schedule proper ties by metes and bounds in 16 equal shares and for the allot https://www.mhc.tn.gov.in/judis ment and separate possession of five equal shares to each of the A.S.No.734 of 2009 4/51 plaintiffs 2 and 3 and for allotment and separate possession of one share to the first plaintiff.(Amended as per orders in I.A.No.308 of 2007 dated 16.07.2007).
a (i) declaring that the alleged partition deed dated 31.08.2020 (Document No.357 of 2000) purportedly entered into between late Mr.Palaniswamy Gounder and the first defendant is void, illegal, ultra vires and not binding on the plaintiffs.
(Amended as per order in I.A.No.308 of 2007 dated 16.07.2007.)
b) for partition of the suit “E” schedule properties by metes and bounds into four equal shares and for the allotment and possession of one such share each to the plaintiffs.
c) directing the defendant to render a true and proper accounts in respect of the income earned from “A” to “D” schedule properties for three years prior to the filing of the suit and to pay the plaintiffs their one- eighth share each in respect of those incomes and also for the period from the date of suit till date of actual division;
d) granting permanent injunction restraining the https://www.mhc.tn.gov.in/judis defendants their men and agents from in any way alienating or encumbering the suit properties A.S.No.734 of 2009 5/51 st
e) directing the 1 respondent to vacate the “F” schedule nd property and hand over vacant possession of the same to the 2 plaintiff on or before a date to be fixed by this Hon'ble Court;”
4. The case of the plaintiffs is that the suit properties were the ancestral properties of the paternal grandfather of the plaintiffs 2 and 3, the st 1 defendant, one Muthusamy. Muthusamy had two brothers, namely, Rangasamy and Kaliappan. On 27.05.1964, a partition of the ancestral properties took place between Muthusamy and his two brothers. Thereafter, there was an exchange deed also executed among the brothers and ultimately, the 'A' schedule property described in the suit fell to the share of Muthusamy along with his son, Palanisamy, who is the father of st st the plaintiffs 2 and 3 and the 1 defendant and the husband of the 1 plaintiff. After the demise of Muthusamy, the 'A' schedule property came to be inherited by Palanisamy. The 'A' schedule property yielded considerable income, from out of which the 'B' schedule properties were acquired in the name of Palanisamy. The 'C' schedule properties were https://www.mhc.tn.gov.in/judis st purchased in the name of the said Palanisamy and the 1 defendant before A.S.No.734 of 2009 6/51 st the 1 defendant's marriage, from out of the joint family income. Likewise, the 'D' schedule properties were purchased from out of the joint family st nd income in the name of the 1 defendant and his wife/the 2 defendant. The nd 'E' schedule properties were also purchased in the name of the 2 plaintiff from out of the funds provided by her husband, Duraisamy. The suit schedule set out a property described in hte 'F' schedule, which the plaintiffs contended is a partion of the 'E' schedule property which was st encroached into by the 1 defendant.
5. It is the case of the plaintiffs that with reference to the 'E' schedule nd property, Palanisamy had requested the 2 plaintiff and his daughter, to execute a settlement deed in his favour. Thereafter, Palanisamy had constructed a house in the said property. The total extent of the 'E' schedule property was 13 cents. However, to the shock of the plaintiffs, st the 1 defendant has annexed 3 cents from out of this property on the eastern side. It is also the case of the plaintiffs that on the death of their https://www.mhc.tn.gov.in/judis father, they are entitled to a share in the 'E' schedule property as well. A.S.No.734 of 2009 7/51
6. The plaintiffs would contend that after teh death of Palanisamy they had requested the defendants to partition the property. However, they have turned a deaf ear to the said request. It is also their case that the 'B' schedule business was being run by the deceased Palanisamy till his death. However, this business has not been set out in the schedule of properties. The business was known by its name Sri Sakthi Electricals. On the demise st of the said Palanisamy, the 1 defendant has surreptitiously entered into the business and got the license and other documents transferred in his st name. The plaintiffs issued a legal notice dated 12.05.2003 to the 1 defendant calling upon him to partition the property. However, by reply st dated 21.05.2003, the 1 defendant would deny the claim of the plaintiffs and setup a Will said to have been executed by the deceased Palanisamy in st favour of the 1 defendant, his wife and children. The plaintiffs would submit that the Will is shrouded in suspicious circumstances for the following reasons:-
“a) The deceased Palanisamy was addicted to liquor. https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 8/51
b) He had not been in a sound disposing state of mind for a considerable period.
c) There is no explanation in the Will as to why the other members of the family have been disinherited oblique over looked for the bequest.”
d) The 1st defendant played a very active role in the execution of the said deed.
st
7. The 1 defendant had also referred to a partition deed, which was entered into between him and the deceased Palanisamy on 31.08.2000. It is only a small portion of the properties that has been divided in the partition st deed. The 1 defendant enraged by the demand for partition had driven out st the 1 plaintiff from the house in which, she had been living along with her nd husband till his death. She is now in the care and custody of the 2 st plaintiff. A police complaint was lodged on 03.07.2002 about the 1 plaintiff being driven out of the house and the police had directed the plaintiffs to approach the civil Court. Originally, the plaintiffs had asked a https://www.mhc.tn.gov.in/judis th 1/8 share in the suit 'A' to 'D' properties, but after the amendment to the A.S.No.734 of 2009 9/51 Tamil Nadu Hindu Succession Act, the 2nd and 3rd plaintiff have a share st on par with the 1 defendant and hence, the suit had been filed on behalf of the plaintiffs 2 and 3, who got a right in the ancestral properties. DEFENDANTS' CASE:-
8. The defendants resisted the suit interalia contending that it is a sheer abuse of process of the Court. Sri Sakthi Electricals had been established in the year 1960 and had earned considerable income. It is from out of this income that the 'B' schedule property was purchased. It is also their contention that during the life time of Palanisamy, several properties had been purchased. The properties had been purchased from out of the income generated by the concern, namely, Sri Sakthi Electricals. The defendants would submit that the properties purchased in the name of st the 1 defendant and his wife are their separate property. Likewise, the 'E' nd schedule property purchased by Palanisamy in the name of the 2 plaintiff had been settled by her in favour of her father and therefore, she cannot https://www.mhc.tn.gov.in/judis claim any right to the property. Under the Will, the property has been A.S.No.734 of 2009 10/51 nd bequeathed to the 2 defendant. The 'F' schedule property was purchased st st by the 1 defendant for valuable consideration. It is only the 1 defendant, who has been looking after the business even during the life time of his father, Palanisamy. The defendants would also raise a defense that the Court fee paid is wrong, since the plaintiffs are not in joint possession of the properties. This written statement was adopted by the defendants 2 to
4. Thereafter, an additional written statement has been filed, in which, the contents of the earlier written statement was reiterated and contending that as the partition had taken place on 31.08.2000, the plaintiffs were not entitled to the benefits of the amendment of Tamil Nadu Hindu Succession Act as the amending Act does not affect or invalidate any partition that takes place prior to 20.12.2004. Another written statement was filed on 17.03.2007 contending that under the sale deed dated 23.03.2005, S.F.Nos.418/4 and 418/5 had been sold to Marimuthu. The 5th defendants contention was that he is a bonafide purchaser for the value and his interests should therefore be protected. The defendants in all sought to https://www.mhc.tn.gov.in/judis have the suit dismissed.
A.S.No.734 of 2009 11/51TRIAL COURT:-
9.The learned Additional District Judge cum Fast Track Judge, No.II, Coimbatore, framed the following issues, after taking into consideration the pleadings on either side.
“1.thjpfSf;Fg; ghfg;gpuptpid
fpilf;fj;jf;fjh>
2.31.08.2020 njjpapy; Vw;fdnt FLk;gj;jpy;
ghfg;gpuptpid Vw;gl;L mjd; ngupy; brhj;Jf;fs;
mDgtpf;fg;gl;L tUfpd;wdth?
3.28.07.2000 njjpapl;ljhf Twg;gLk; capy;
jpU nf.vk;. godpr;rhkpahy; Vw;gLj;jg;gl;L
eilKiwapy; gpd;gw;wg;gl;ljh?
4.Kjy; gpujpthjpaplk; rl;lg;goahf 5k;
gpujpthjp fpuak; ngw;Ws;shuh> mJ nry;yj;jf;fjh?
5.vg;gupfhuk; thjpfSf;Ff; fpilf;Fk;?” https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 12/51
10. Thereafter, on 19.01.2017, the following additional issues were raised.
“1.thjpfSf;Fg; g[jpa ,e;J thuprupikr;
rl;lk; 2005?d; go gupfhuk; bgw cupatuh?
2.thjpfSf;Fg; v gl;oay; brhj;jpy;
gupfhuk; nfhupathW bgw cupatuh vd;gnjahFk;?”
11. The parties had gone to trial on these issues. The plaintiffs on st their side had examined the 1 plaintiff as P.W1 and one Dr.Kesavamoorthy was examined as P.W2 and 22 documents were marked as Ex.A1 to Ex.A22. On the side of the defendants, 4 witnesses st were examined and the 1 defendant examined himself as D.W1 and the attesting witnesses of the Will as well as partition deed were examined as D.W2 and D.W3, respectively. The purchaser of the property, the 5th defendant, was examined as D.W4 and Ex.B1 to Ex.B20 were marked. Apart from the above documents, two other documents were marked as https://www.mhc.tn.gov.in/judis Court documents, Ex.X1 and Ex.X2.
A.S.No.734 of 2009 13/51
12. After hearing the parties and perusing the records the learned Additional District Judge cum the Judge, Fast Track Court No.II, Coimbatore, had decreed the suit as follows:-
“1. thjpfspd; tof;F mDkjpf;fg;gl;L
jPu;g;gspf;fg;gLfpwJ.
2/ jhth v Kjy; b gl;bay; nrhj;Jf;fspy;
thjpfSf;Fj; jyh 1/8 ghfKk; , gl;bay;
nrhj;Jf;fspy; thjpfSf;Fj; jyh 1/4 ghfKk;
fpilf;ff;$baJ vd jPu;g;gspf;fg;gLfpwJ.
3/ nrhj;Jf;fspy; tUkhdk; Fwpj;j fzf;fpid
Kjy; gpujpthjp rkh;gpf;f Ntz;Lk; kw;Wk; gpuhjpy;
NfhupAs;sthW tpsk;Gif gupfhuKk; epue;ju
cWj;Jf;fl;lisg; gupfhuKk; toq;fp
jPu;g;gspf;fg;gLfpwJ.
4/ vg; gl;bay; nrhj;jpidg; nghWj;J RthjPdg;
gupfhuk; fpilf;ff;$baJ vd Kjy; epiyj;
jPu;g;ghid gpwg;gpj;J jPu;g;gspf;fg;gLfpwJ. https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 14/51 SUBMISSIONS:
13. Mr.V.Ramesh appearing on behalf of the appellants/defendants 1 to 4 would submit that the entire crux of the plaintiff's case rests on the basis that all properties described in the schedule of properties are joint family properties. The plaintiffs have contended that the properties described in Schedule 'B' to 'F' had been purchased from out of the income derived from the A- Schedule property which is the ancestral property. He would submit that the sum and substance of the plaintiff's case is set out in paragraph nos.4 and 5 of the plaint which reads as follows:-
" The plaintiff submit that there took place a partition between the father of Mr.K.M.Palanisamy by name Muthusamy and his two brothers Rangasamy and M.Kaliappan on 27.05.1964. Under the said Deed of Partition, certain properties were allotted to Mr.Muthusamy. Subsequently, there took place a Deed of Exchange between Muthusamy and his brothers, as a result of which certain https://www.mhc.tn.gov.in/judis exchange of properties were made. Ultimately, Mr.Muthusamy A.S.No.734 of 2009 15/51 came to be in possession and enjoyment of "A" schedule property alongwith his son Mr.K.M.Palanisay as a jont family property. After the demise of Sri.Muthusamy, his son K.M.Palanisamy came to be in possession and enjoyment of the "A" schedule property alongwith his son, the first defendant herein, who held and enjoyed the same as joint family property.
5. The "A" schedule properties yielded considerable agricultural income, with the help of which Sri.K.M.Palanisamy acquired the property more fully described in schedule "B" hereunder. Thus, "A" and "B"
schedule properties were all joint properties in the hand of Mr.K.M.Palanisamy and also his son who is the 1st defendant herein. This apart, the properties morefully described in schedule "C" hereunder were purchased in the name of the 1st defendant and his father late Sri.K.M.Palanisamy. The above https://www.mhc.tn.gov.in/judis said properties were purchased before the marriage of the 1st A.S.No.734 of 2009 16/51 defendant herein. The properties morefully described in the schedule "D" hereunder were purchased in the name of the 1st defendant and his wife Smt.Ponnammal. These properties also part took the character of joint family property corpus and nucleus in the hand Mr.K.M.Palanisamy and the 1st defendant herein. Thus, Mr. K.M.Palanisamy had an undivided half share in the "A" to "D" schedule properties, while the 1st defendant herein got the other half share. On account of the intestate demise of Mr.K.M.Palanisamy, the plaintiffs herein who are the mother and daughter respectively are entitled to an undivided 1/8th share each in the suit "A" to "D" schedule properties.
14. He would submit that although the plaintiffs have pleaded that the other properties have been purchased from out of the income generated from the 'A' schedule ancestral property, however, they have not been able https://www.mhc.tn.gov.in/judis to prove that the income from the A schedule in surplus that after A.S.No.734 of 2009 17/51 defraying the expenses for the up-keep of the properties and the maintenance of the family the properties had yielded excess income which provided the source to purchase all the other properties. He would further st argue that the 1 plaintiff as P.W.1 has clearly admitted that even prior to her marriage to the deceased Palanisamy, Palanisamy had been employed at Metupalayam which would clearly show that the income from the ancestral property was not sufficient to meet the family expenses. It is this financial need that had constrained Palanisamy to seek employment elsewhere. He would submit that if really there was a large scale agricultural activities, Palanisamy would not have shifted to Mettupalayam. Further, even as early as in the year 1960 Palanisamy. has set up his own business. and all properties have been purchased thereafter, i.e., properties comprised in B and E Schedule of Properties have been purchased thereafter. He would therefore submit that except for the A Schedule properties all the other properties are the self acquired properties st of Palanisamy and 'C' Schedule properties belongs to both the 1 defendant https://www.mhc.tn.gov.in/judis as well deceased Palanisamy as it has been purchased in their joint names. A.S.No.734 of 2009 18/51
st
15. The learned counsel would submit that the 1 defendant had been assisting his father in his business Sri Sakthi Electricals even during his school days and it is only from out of the income from this business that properties have been purchased by him. He would further submit that the st nd D schedule properties are the self acquired properties of the 1 and 2 defendants and the plaintiffs have no right over the same. As regards the E Schedule properties the learned counsel would submit that originally the property was purchased by Palanisamy in the name of his daughter and thereafter, he had asked his daughter to settle the properties in his name and therefore, this property is also self acquired property of Palanisamy. The learned counsel would submit that the plaintiffs are not entitled to claim under the amending Act since the partition between the plaintiff and his father had taken place prior to the cut of date i.e., 20.12.2004.
16. The learned counsel would further submit that as regards the self https://www.mhc.tn.gov.in/judis acquired properties, Palanisamy, had executed a Will in a sound disposing A.S.No.734 of 2009 19/51 st state of mind in favour of the 1 defendant as well as the children of the plaintiffs 2 and 3 herein. He would argue that the father had not provided st st for the 1 plaintiff his wife since, the 1 defendant, the son was already st taking care of his mother and his father was confident that the 1 defendant would continue to take care of his mother. He would submit that the Will has been proved by examining D.W.2. D.W.2 has been in the employment of Palanisamy for several years and therefore knew not only Palanisamy but also the family very intimately. Palanisamy had requested D.W.2 to attest his Will and D.W.2 has spoken to the factum of the execution of the Will and the fact that the second attesting witness had also witnessed the testator sign the Will and he in turn had seen both the witnesses signing the Will and all the three of them had executed the Will at the same time in the presence of each other. He would submit that this submission has not been controverted in the cross-examination of D.W2 and therefore since there is a strict compliance of the provisions of section 68 of the Indian Evidence Act and Section 63(c) of the Indian Succession Act, the Will has https://www.mhc.tn.gov.in/judis been proved beyond doubt.
A.S.No.734 of 2009 20/51
17. The learned counsel would further submit that the partition deed dated 30.08.2007, has been executed and registered by Palanisamy and the st 1 defendant for himself and his minor children and D.W.3 has spoken to the execution of the same. He would argue that the learned Additional District and Sessions Judge, Fast Tract Court No.2, Coimbatore has totally overlooked the fact that Ex.B.12, Will has been proved in the manner known to law and is a registered instrument as also the partition deed. The findings of the Court below therefore has to be set aside and the Court below ought to have held that with reference to the suit B to F Scheduled properties, the plaintiffs have no manner of a right title or interest. In support of his above arguments the learned counsel has relied on the following Judgments reported in AIR (33) 1951 SCC 103 - Gnambal Ammal Vs. Raju Ayyar. This Judgment is cited in support of the counsel's arguments that while interpreting a Will the Courts are only required to ascertain the intention of the testator primarily from the language of the https://www.mhc.tn.gov.in/judis document as a whole and not on speculations and presumptions. He would A.S.No.734 of 2009 21/51 draw the attention of the Court to paragraph no.10 of the said Judgment. In the said Judgment the learned Judges have observed that the presumptions against intestacy can be invoked only when there is an ambiguity in ascertaining the intention of the testator. The learned counsel would submit that in the instant case, there is absolutely no doubt about the intention of the testator, as the language of the Will is unambiguous.
18. He would next rely on the Judgment reported in (2001) 7 SCC 503 - N.Kamalam (Dead) and Another Vs. Ayyasamy and Another. This Judgment has been cited in support of his argument that the defendants 1 to 4 have satisfied the requirement of attestation by examining D.W.2 one of the attesting witness of the Will Ex.B.12. The witness is none-else than a person who has been closely associated with the testator for a very long time. In this connection he would draw the attention of the Court to paragraph no.25 of the above Judgement, which is extracted herein below:-
https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 22/51 "25. The requirement of attestation presently in the country is statutory in nature, as noticed hereinbefore and cannot as such be done away with, under any circumstances. While it is true that in a testamentary disposition, the intent of the attestor shall have to be assessed in its proper perspective but that does not however mean and imply non-compliance with a statutory requirement. The intention of the attestor and its paramount importance cannot thwart statutory requirement. No doubt the scribe has subscribe his signature but a scribe in accordance with common English parlance means and implies the person who writes the documents."
19. He would further rely on this Judgment to counter the arguments of the plaintiffs that the scribe of the Will has not been examined and this is one of the suspicious circumstances that the Court has to consider. This https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 23/51 Judgment seeks to distinguish the effect of signing as an attesting witness and as a scribe.
20. The next Judgment relied upon is a Judgment reported in AIR 2004 Bombay 401 - Prabhavati Narayan Mokal Vs. Baliram Rambhau Patil. This Judgment is relied to offset the arguments of the plaintiffs that the attesting witness had come in much later and therefore, his evidence cannot be relied upon. In this connection he would draw the attention of the Court to paragraph no.8 of the above Judgment in which the learned Judge has held as follows:-
" The requirement of Section 63(c) is not that the attesting witness should be present when the Will is actually being scribed or is being reduced into writing but that the attesting witness must witness the signature on the Will by the testator or receive an acknowledgment from the testator of his having signed the Will and that the attesting witness https://www.mhc.tn.gov.in/judis must sign in the presence of the testator.A.S.No.734 of 2009 24/51
st
21. Further the 1 defendant has complied with the provisions of Section 63(c) by examining one of the attesting witnesses. He would submit that it is not mandatory to examine both the witnesses and it would suffice if one of witness is able to cogently depose upon the execution and attestation of the Will. Lastly, he has relied on the Judgment of the Supreme Court reported in 2007 1 CTC 334 - Gurdev Kaur and others Vs. Kaki and others. This Judgement is relied upon to buttress the appellant's contentions that the Court cannot substitute its opinion on the testator's Will or intention which is manifest from a reading of the written instrument. The Court cannot subscribe its view on whether a bequest is just or unjust. The role of the Court in this regard, is limited to examine as to whether the instrument that is propounded is actually the Will of the deceased testator and that the Will has been executed in a sound and free disposing state of mind. Once the propounder is able to show that the Will is duly executed and attested then there is a presumption that the execution https://www.mhc.tn.gov.in/judis and attestation of the Will is complete.A.S.No.734 of 2009 25/51
22. He would contend that the Trial Court has relied upon extraneous matters without considering the documents to come to the conclusion that the Will and the partition have not been legally executed.
23. Per contra, Mr.N.L.Raja, Senior counsel appearing on behalf of rd the learned counsel for the 3 respondent would submit that the Court below has extensively considered the documents and the evidence let in by st both parties. The 1 defendant has set up a Will and this Will is shrouded in suspicious circumstances. The Trial Court has extensively considered these circumstances to come to the conclusion that the Will is not a validly st executed Will, and further the attesting witness is an employee of the 1 defendant and therefore his evidence cannot be relied upon.
24. That apart, the Trial Court has also extensively dealt with the st partition effected between the 1 defendant his children and the deceased https://www.mhc.tn.gov.in/judis Palanisamy which is a registered document. The Trial Court has examined A.S.No.734 of 2009 26/51 the above document and compared it conjointly with Ex.A.20, to show that the partition deed is a concocted one and not one prepared by the deceased Palanisamy as one of the properties that have already been sold has been included in the partition deed. This would clearly show that the document has not been properly explained to the deceased Palanisamy and he was not in a position to fully understand the contents of the document both on account of his illness and on account of the fact that he was not in a sound disposing state of mind.
25. The learned Senior Counsel would submit that the Court below has taken note of the fact that the time span between the execution of Ex.B.12, Will and Ex.B.16, partition deed is too short and there is no reference about the Will in Ex.B.16, partition deed which is executed just a month after the alleged execution of the Will.
26. The learned Senior counsel would also draw the attention of the https://www.mhc.tn.gov.in/judis st Court to the oral evidence of the 1 defendant as D.W.1, where during the A.S.No.734 of 2009 27/51 st chief examination, the 1 defendant had feigned ignorance about the sale st of one of the joint family properties in the year 1992 by Palanisamy, the 1 defendant and the plaintiffs herein which he later accepts during the cross- examination. This clearly proves the conduct of the 1st defendant and his attempt to brush the truth under the carpet.
27. The learned Senior counsel would submit that the Will is totally shrouded in suspicious circumstances and the Will does not contain any explanation as to why the other legal heirs were being excluded. This assumes considerable significance as the Will does not make any provision st for Palanisamy's wife, the 1 plaintiff herein. He would also rely upon the evidence of D.W.1 and D.W.2, both of whom have deposed that the deceased Palanisamy loved the plaintiffs 2 and 3 and the 1st defendant equally and in such circumstances, omission to provide for the plaintiffs is rather glaring and clearly proves the suspicious circumstances. The plaintiffs have proved the existence of a joint family property by proving https://www.mhc.tn.gov.in/judis that the A Schedule property is an ancestral properties which contention is A.S.No.734 of 2009 28/51 accepted even by the defendants. He would rely on the following judgments in support of his contentions which is extracted herein below:-
1. (2007) 9 SCC 727 - Behera and Another Vs. Braja Kishore Nanda and others.
2. (2017) 1 CTC 165 - Saraswathi Vs. M.Maruthachalam, Mr.Krishnakurthy.,
3. (2017) 2 LW 596 - S.Rajeswari Vs. N.Rasayee.,
4. (2018) 6 MLJ 139 - G.Para Singh Munoth Vs. Gyanlatha.,
5. AIR 1967 SC 1153 - Valliammai Achi Vs. Nagapaa Chettiar and Another.,
6. (1872) 4 SCC 1 - M.N. Ayamurthy and Another Vs. M.d.Subbaraya Setty and Others.,
7. AIR 2005 Kar 19 - Basavaraja Guddappa Malabennur and others Vs. Ningappa Guddapaa malabennur and others.,
8. AIR 2008 HP 15 - Smt. Devku and Others Vs. Smt. Sunari and Others.,
9. 2011 (5) CTC 262 - G.Lalitha Vs. G.Ponnurangam, G.Chandran, G.Vasanthakumari.,
10. AIR 2014 Kar 58- V.Ethiraj Vs. S.Sridevi and Others.,
11. (2006) 9 SCC 515 - Joseph Anthony Lazarus by LRS Vs. A.J.Francis., https://www.mhc.tn.gov.in/judis
12. (2009) 3 SCC 687 - Bharpur Singh and Others Vs. Shamsher Singh., A.S.No.734 of 2009 29/51
13. AIR 1996 Mad 212 - Gurusamy Naicker and Others Vs. G.Jayaram and Others.,
14. MANU/TN/4175/2018 - Chinna Gounder and Others Vs. Periyanna Gounder and Others.,
15. MANU/TN/6204/2020 - Gandhi and others Vs. Divya and Others.
28. The learned counsel would also submit that the plaintiff by examining P.W.2 has clearly established the fact that the deceased Palanisamy had certain health issues on account of his being addicted to alcohol. Therefore, that is yet another suspicious circumstances.
nd
29. Mr. Dinesh, learned counsel appearing on behalf of the 2 respondent would in addition to the submissions made by the learned Senior counsel submit that the original Will has not been filed into Court st and the 1 defendant has clearly admitted that he is not in possession of the st same. Though, the 1 defendant has stated that the Will has been mortgaged, no steps have been taken to produce the original from the https://www.mhc.tn.gov.in/judis mortgagee (Bank) and therefore an adverse inference has to be drawn for the non-production of the Will. That apart, he would argue that the Will A.S.No.734 of 2009 30/51 itself had not been marked in the proof affidavit filed in lieu of the chief examination of D.W.2. He would further point out that in the affidavit the sentence which translated from the vernacular i.e., “the above Will is sought to be marked as Exhibit...(.....) on the defendants side” has been completely scored out. This, the counsel would submit, clearly proves that the will was not marked.
30. Further in the chief examination of D.W.2 taken on 21.11.2011, the witness has marked only his signature as Ex.B.18. He would submit that this is yet another suspicious circumstances surrounding the execution of the Will. That apart, D.W.1 who has admitted in his cross examination that the original of the Will is available with him has failed to produce the st same and therefore adverse inference has to be drawn against the 1 defendant. That apart, the attesting witness of the Will is an employee of st the 1 defendant and therefore an interested witness. He would submit that the attestation is suspect since D.W.2 during his oral evidence/cross- https://www.mhc.tn.gov.in/judis examination would submit that he had worked till 8 p.m., whereas the Will A.S.No.734 of 2009 31/51 is said to be registered/attested between 4 and 5 p.m., on the file of the Registrar Office. The Will consisted of 4 items of properties. 'A' schedule which was a shop Sakhti Electricals, B schedule comprised of all the agricultural land and C schedule was the E schedule in the suit schedule property. The properties described in the D schedule are shown as the properties allotted to the grand children through the daughters of which one item was already bequeathed to the grand children through the daughter which again is a property which was sold under Ex.A.22. Likewise, even in the partition deed dated 31.08.2007, the very same property sold under the Ex.A.20, has been included. He would also submit that though the partition deed has been executed nearly a month later there is no reference to the Will in the said partition. He would attack the partition deed on the following grounds.
I) A Schedule of the partition deed includes property which is nd already included in the Will as well as the 2 item of the D Schedule https://www.mhc.tn.gov.in/judis properties. The B schedule in the partition deed consists of properties A.S.No.734 of 2009 32/51 which have been shown as item 10 and 11 in the Will and which have been st rd allotted to the 1 defendant. Likewise, C schedule is the 3 item of the D schedule in the Will which is the 4 acres which has already been sold under Ex.A.20. Therefore, the inclusion of properties already dealt with only strengthens the contention of the plaintiffs that the deceased Palanisamy was not in a sound disposing state of mind at the time of the execution of both the Will and the partition deed, prepared one after the other.
II) The payment of deficit stamp duty has been done after the demise of Palanisamy. D.W.1, has himself admitted that the partition deed is not valid as it includes properties which have been already alienated/ bequeathed. Then, D.W.3, the attesting witness of the partition deed has openly submitted that he has received money for signing as a witness. The counsel would further submit that after the Hindu Succession Act has been amended, the plaintiffs are entitled to a share in all the properties on par st with the 1 defendant, their brother. In all they have submitted that the https://www.mhc.tn.gov.in/judis Judgment and Decree of the Trial Court be sustained. A.S.No.734 of 2009 33/51
POINTS FOR CONSIDERATION:
31. Upon hearing, the elaborate arguments put forward by the counsels, the following points for consideration arise in the above First Appeal:-
i) Whether the suit schedule properties are joint family properties as the nucleus for the purchase of the properties described as B to E emanates from the income derived from the ancestral property described as the 'A' schedule properties?
ii) If the properties are joint family properties, whether st the plaintiffs 2 and 3 are entitled to an equal share as the 1 defendant in the light of the Hindu Succession (Amendment) Act, 2005?
iii) Whether the Will dated 28.07.2000, is a validly executed one conveying a right to the 1st defendant?
iv) Whether the partition deed Ex.B.16 is validly https://www.mhc.tn.gov.in/judis executed?A.S.No.734 of 2009 34/51
v) To what relief the parties are entitled to?
32. The plaintiffs have come forward with a case that the suit A schedule properties are the Joint Hindu Family properties and that from out of the income derived from these properties, all the other properties described in B, C, D and E have been purchased. In order to appreciate the above contention it has to be first examined as to whether the plaintiffs have established that the 'A' schedule properties had fetched income, the surplus of which has gone into the purchase of the other properties.
33. On the side of the plaintiffs, the 1st plaintiff alone has been examined. In her chief examination she would state that it is the income derived from the 'A' Schedule properties that has gone into the purchase of all the other properties. However, during her cross-examination the witness has not been able to give any details as to the nature of crops that were cultivated in the A schedule property and the income that the https://www.mhc.tn.gov.in/judis property had yielded. She was also not able to give the details of the A.S.No.734 of 2009 35/51 properties that have been purchased from out of this income. In fact the witness was unable to provide the survey numbers of the ancestral property as well. She has clearly admitted that her husband was carrying on the Electrical business and had not participated in the agricultural activities and it was she who was carrying on the agricultural activitie. She would state as follows in her cross examination:
";vd; tPl;Lf;fhuu; nfhitapy; fil elj;jpte;jhu; g{kpia ehd;jhd; ghu;j;J te;njd;/
34. Despite this P.W.1 is unable to give the nature of the land, the cultivation being carried on income from the lands etc., It is settled law, that in order to prove that properties standing in the names of individual members of the family are joint family properties, it has to be proved that they have been purchased from out of joint family funds. The person so pleading has to not only establish the existence of an ancestral (nucleus) but also to prove that the income generated therein after defraying the https://www.mhc.tn.gov.in/judis expenses for the maintenance of the properties and the family still yielded A.S.No.734 of 2009 36/51 a surplus which formed the nucleus for the purchase of the other properties.
st
35. The 1 plaintiff as P.W.1 has stated that the ancestral property consisted of 5 ½ acres of land of which 1 acre was covered with Neem Trees and the remaining extent was cultivated. However, witness is unable to show or provide details of the actual cultivation that has taken place in the said land. Further out of the ancestral property an extent of 2.02 acres in Survey No.473 has been sold out. A portion of the land has also been acquired by the land acquisition authorities. The witness was unable to give the extent of land that remained in the hands of the family thereafter.
36. The Hon'ble Supreme Court in the Judgement reported in 1954 AIR 379 - Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and others, was deciding the issue as to whether there is a presumption that a properties held by a member of a joint hindu family is joint family https://www.mhc.tn.gov.in/judis property. The learned Judge relied on the observation of earlier A.S.No.734 of 2009 37/51 Judgement of the Privy Council reported as Appalaswami Vs. Suriya Narayanmurthi in AIR 1947 PC 189 which reads as follows:
" The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may (1) I.L.R. 1948 Mad. 440 at 447, 448 have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property: See Babubhai Girdharlal v. Ujamlal Hargovandas (1), Venkataramayya v. Seshamma(2) Vythianatha v. Vdradaraja (3)."
https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 38/51 Applying the above ratio to the case before them the Bench held that it was not sufficient to prove the existence of a joint family properties but the person claiming the right should prove that the income yielded therefrom was sufficient to form the neucleus for the purchase of the other properties.
37. The above Judgement was referred to in another Judgement of this court reported as 2010 (1) MLJ 1019 - K.V.Ramasamy and another Vs. K.V.Rahgavan and others and the learned Judge after considering various other Judgements as well had set out the essential ingredients required to establish the existence of a joint family nucleus in paragraph no.34 of the Judgement which reads as follows:
"34.From the conjoint reading of the decisions referred to supra, the following aspects can be culled out easily:
(a)The joint family nucleus must have left sufficient surplus income so as to enable acquisition.
https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 39/51
(b)Initially, burden lies upon a member, who alleges that a particular property is a joint family property to the extent that the alleged joint family nucleus must have left sufficient surplus income and by utilizing the same, the property in question could have been acquired.
(c)If the initial burden as referred to above is proved, then the burden shifts to the member of the joint family setting up claim that it is his personal property and the same has been acquired without any assistance from the joint family property.
(d)Failure to prove existence of nucleus, the inevitable presumption is that the acquisition in question is nothing but self acquisition.
(e)Mere fact of existence of a joint family does not lead to presumption that a property held by any of its member is joint family property unless the above aspects are proved. https://www.mhc.tn.gov.in/judis and A.S.No.734 of 2009 40/51
(f)If the property acquired is standing in the name of the female member of a joint family, she need not prove as to how she acquired it."
38. Therefore, in the light of the above Judgements we have to now examine if the plaintiff has been able to prove that the ancestral land had generated surplus funds. In this regard, the plaintiffs have neither produced documents nor oral evidence to show the kind of income that was generated from the joint family properties. Further even before the properties had been allotted to the share of Muthusamy under Ex.A.1, Palanisamy. had left for Mettupalayam in search of employment. This clearly goes a long way to prove that the income from the properties were not sufficient to sustain the family which compelled Palanisamy to move to Mettupalayam to eke out his livelihood. P.W.1 has further stated within a year of her marriage to Palanisamy he had returned and set up his business Sri Sakhti Electricals in the year 1960. The partition between https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 41/51 Muthusamy, Palanisamy's father and his brothers had taken place thereafter in the year 1964 only.
39. Therefore, from a conspectus of the above it is clear that the plaintiffs have not been able to prove their case that the other properties namely, B to E schedule properties have been purchased from out of the joint family funds. Therefore, the finding of the Trial Court that all the properties comprised in B to E schedule properties partake the nature of joint family properties cannot be sustained and is therefore set aside. The first and second point for consideration is answer in favour of the defendant/ appellant.
40. 'A' schedule properties admittedly are the joint family properties and the plaintiffs and 1st defendant entitled to an equal share in the said property since the 1st plaintiff is no more plaintiffs 2 and 3 and the 1st defendant are entitled to a 1/3rd share each in the said property. https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 42/51
41. Once the 1st two points of consideration are answered against the plaintiffs it has to be seen if they are entitled to a share in the other items of properties. The 1st defendant has claimed an exclusive right over most of the properties on the basis of the Will. It is an admitted fact that from the year 1960, Palanisamy has been carrying on business in the name and style of Sakthi Electricals and as the plaintiffs have not been able to prove the joint family neucleus the properties have only been purchased from out of the income generated from the business of Palanisamy viz; Sri Sakhti Electricals as there is no other source of income pleaded or proved by the plaintiffs. Therefore, the properties standing in the name of Palanisamy are his self-acquired properties.
st
42. The 1 defendant seeks to claim an exclusive right to the properties standing in the name of Palanisamy on the basis of the Will. The Will in question has been attacked by the plaintiffs by contending that the Will is an invalid since the same has not been executed by Palanisamy https://www.mhc.tn.gov.in/judis in his sound disposing state of mind and further the entire execution is A.S.No.734 of 2009 43/51 shrouded in suspicious circumstances. The plaintiffs have put forward the following contentions to show that the Will is shrouded in suspicious circumstances.
a) The Will does not give any reasons as to why the st testator has not provided for his wife, the 1 plaintiff and his nd rd daughters, the 2 and 3 plaintiffs when it is the admitted st case of the 1 defendant as well as P.W.1 that the testator loved all his children equally.
b) By examining P.W.2, the plaintiffs have proved that the deceased Palanisamy was addicted to alcohol and had suffered from liver cirrhosis and had been admitted in the hospital.
c) The partition deed which came to be executed nearly a month after the execution of the Will does not make any mention about the Will dated 28.07.2000. The attesting st witness is an employee of the 1 defendant and his evidence is https://www.mhc.tn.gov.in/judis also not trustworthy.
A.S.No.734 of 2009 44/51
d) The admission of D.W.2 that the propounder of the st Will (1 defendant) was very much available at the time of the st execution of the Will shows the active involvement of the 1 defendant in the execution of the sale deed.
This contentions are well founded and proved by the plaintiffs.
43. Apart from the above suspicious circumstances another factor that is to be taken note of is that the plaintiff has not produced the original Will for the scrutiny of the Court. What has been marked is only the certified copy and even that copy appears to have not been marked which is evident from scrutinizing the oral evidence of D.W2 both in his chief examination as well as his cross examination. In the proof affidavit in lieu of the chief examination of D.W.2 the entire sentence regarding the marking of the document has been scored out and in the deposition in Chief examination on 21.11.2007, it is only the signature of the attesting https://www.mhc.tn.gov.in/judis witness which has been marked as Ex.B.18. (When the above argument A.S.No.734 of 2009 45/51 was made by Mr. Dinesh, Counsel appearing for respondent, this Court had called for the document submitted in the Trial Court. A perusal of the same would show that it is the Will that has been marked as Ex.B.18 and not only the signature. However, the marking of the document does not co-relate with the oral evidence taken on 21.11.2007).
44. That apart, the original Will has not been produced before this Court. The 1st defendant who contends that the Will has been mortgaged has not chosen to summon the original Will submitted from the bank for the scrutiny of the Court. Therefore, it is only the certified copy of the Will that has been produced. The non-production of the original assumes significance since the plaintiffs have questioned its very execution. Further the evidence of D.W.2 both in chief examination as well as cross examination gives rise to a doubt as to whether the Will had been marked at all. D.W.1 and D.W.2 would submit that the testator was in a sound disposing state of mind as well as healthy, when the document was https://www.mhc.tn.gov.in/judis executed. However, P.W.2, Doctor would submit that the testator was A.S.No.734 of 2009 46/51 undergoing treatment for liver cirrhosis which is caused by excessive consumption of alcohol. P.W.2 has spoken elaborately on this condition of the testator and the defendants were unable to contradict this evidence.
45. The evidence of D.W.1 and D.W.2 when closely scrunitised shows that they are not coming forward with the true facts. The attesting witness D.W.2 would go one step further to say that the testator was not an alcoholic and was "spiritually inclined". He who claims to know the family for ever so many years would submit that he does not know if the testator was hospitalized. This statement has to be viewed suspiciously particularly when the deceased testator had been admitted to the hospital and died in the hospital. This would clearly go to show that the evidence of D.W.2 is made with a intent of helping the 1st defendant. Therefore, D.W.2 is an interested witness and weightage cannot be given to his evidence.
46. The Trial Court has extensively considered the suspicious https://www.mhc.tn.gov.in/judis circumstances surrounding the execution of the Will and therefore I do not A.S.No.734 of 2009 47/51 find any reason to disagree on this findings therefore, the 3rd point for consideration is answered in favour of the plaintiff.
47. Ex.B.16 partition deed is challenged on the ground that the same has been executed fraudulently by the 1st defendant taking advantage of the frail condition of Palanisamy. who was under his care and custody. That the document was prepared in a hurried fashion is evident from the fact that properties which have been already alienated are also included in the said deed and this fact has been admitted by D.W.1 in his evidence. D.W.1 has also admitted that since the property already sold have been included the partition deed cannot be relied upon. The D.W.1 has sated as follows:
"xU FLk;gj;jpy; ghfk; Vw;gl ntz;Lk;
vd;why; FLk;g egu;fsplk; vd;d brhj;Jf;fs;
,Uf;fpwnjh mij jhd; ghfk; bra;a Koa[k;/
,y;yhj brhj;ij ghfk; bra;a KoahJ/
,y;yhj brhj;Jf;fis gj;jpuj;jpd; K:yk;
xJf;fpdhy; me;j gj;jpuk; bry;yhJ vd;why;
https://www.mhc.tn.gov.in/judis
rupjhd;/
A.S.No.734 of 2009 48/51
48. The suspicion surrounding the execution of Ex.B16, partition deed is proved by perusing the evidence of the witness who has signed as attesting witness in Ex.B.16 partition deed and who was examined as D.W.3. In the course of his evidence, he would contend that he was always paid a sum of Rs.1,000/- for every signature made by him as attesting witness and he was always engaged for this reason by the scribe Eswaramurthy. Therefore, the witness is a paid witness, who signed documents of any person at teh behest of the scribe Eswaramurthy and no reliance placed on his evidence. The conduct of the 1st defendant in this regard therefore appears to be suspicious. If the deceased Palanisamy had himself decided to execute the partition deed there was no necessity for the 1st defendant to arrange for a paid witness, any relative or friend of Palanisamy could have been asked to sign as a witness. The Trial Court has rightly come to the conclusion that the partition deed Ex.B.16 is not a validly executed document, I do not find any reason to disagree with this finding and therefore 4th point for consideration is answered against the https://www.mhc.tn.gov.in/judis defendants. The 'D' schedule properties standing in the name of defendants A.S.No.734 of 2009 49/51 1 and 2 are their individual properties, which are not available for st partition. Admittedly, the 1 defendant had been assisting Palanisamy in his business right from the time he left sched. P.W1 had admitted the above. The plaintiffs have pleaded that the business stands in hte name of st the 1 defendant and they have not claimed a right to the same.
49. In the light of the of the above it has to be considered as to what relief the plaintiffs are entitled to. 'A' schedule properties admittedly are joint family property and in the light of the Vinita Sharma's case the plaintiffs 2 and 3 are entitled to an equal share in the A schedule property. However, since this Court has arrived at a conclusion that the properties described in the 'B' to 'E' schedule properties are not purchased out of the joint family funds the plaintiffs would be entitled to a 1/3rd share each along with the 1st defendant in the 'B' and 'E' schedule properties and the deceased Palanisamy's share in the 'C' schedule. As regards the 'F' schedule property the plaintiffs have not proved as when the 3 cents of https://www.mhc.tn.gov.in/judis land described as the 'F' schedule has been encroached upon. The A.S.No.734 of 2009 50/51 allotment of the 'F' schedule which a part of 'E' schedule can be decided at the time of trial decree.
50. The First Appeal is partly allowed as follows:
(a)The plaintiffs are entitled to a 1/3rd share each in the 'A' schedule property, 'B' schedule property, 'E' schedule prperty and in the 1/2 share of late Palanisamy in the 'C' schedule property.
(b)The plaintiffs are not entitled to any share in the 'D' schedule properties.
(c)That each of the parties shall bear their respective costs.
22.12.2021 Internet : Yes/No Index :Yes/No Speaking / Non-Speaking shr/mm To The District and Sessions Court (Fast Track Court, No.2), Coimbatore.
https://www.mhc.tn.gov.in/judis A.S.No.734 of 2009 51/51 P.T. ASHA. J, shr/mm Pre-delivery Judgment in A.S.No.734 of 2009 22.12.2021 https://www.mhc.tn.gov.in/judis