Madras High Court
Sorimuthu vs Sankaran Pillai (Died) on 19 March, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.740 to 743 of 1998 and C.M.P.Nos.7288 to 7290 of 1998 S.A.No.740 of 1998 1.Sorimuthu 2.Shailappan 3.Kumaravel 4.Dalavai 5.Pechimuthu ... Appellants/Appellants/ Defendants 2 to 6 Vs 1.Sankaran Pillai (died) 2.Kuppammal 3.S.Andiappan 4.S.Subramanian 5.S.Gurusamy ... Respondents/Respondent/ Plaintiff (RR2 to 5 are brought on record as L.R of the deceased sole respondent vide order of this Court dated 21.10.2003 made in C.M.P.Nos.18263 to 18266/98.) Prayer in S.A.No.740 of 1998 Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 10.02.1998 passed in A.S.No.94 of 1992 on the file of the Subordinate Judge, Ambasamudram, in confirming the judgment and decree dated 20.12.1989 passed in O.S.No.89 of 1982 on the file of the Additional District Munsif, Ambasamudram. S.A.No.741 of 1998 #Sundaram Pillai ... Appellant/Appellant/ Defendant Vs $1.Sankaran Pillai (died) 2.Kuppammal 3.S.Andiappan 4.S.Subramanian 5.S.Gurusamy ... Respondents/Respondent/ Plaintiff (RR2 to 5 are brought on record as L.R of the deceased sole respondent vide order of this Court dated 21.10.2003 made in C.M.P.Nos.18263 to 18266/98.) Prayer in S.A.No.741 of 1998 Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 10.02.1998 passed in A.S.No.96 of 1992 on the file of the Subordinate Judge, Ambasamudram, in confirming the judgment and decree dated 20.12.1989 passed in O.S.No.622 of 1982 on the file of the Additional District Munsif, Ambasamudram. S.A.No.742 of 1998 #Madasamy Pillai ... Appellant/Appellant/ Defendant Vs $1.Sankaran Pillai (died) 2.Kuppammal 3.S.Andiappan 4.S.Subramanian 5.S.Gurusamy ... Respondents/Respondent/ Plaintiff (RR2 to 5 are brought on record as L.R of the deceased sole respondent vide order of this Court dated 21.10.2003 made in C.M.P.Nos.18263 to 18266/98.) Prayer in S.A.No.742 of 1998 Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 10.02.1998 passed in A.S.No.95 of 1992 on the file of the Subordinate Judge, Ambasamudram, in confirming the judgment and decree dated 20.12.1989 passed in O.S.No.621 of 1982 on the file of the Additional District Munsif, Ambasamudram. S.A.No.743 of 1998 #1.Sorimuthu 2.Shailappan 3.Kumaravel 4.Dalavai 5.Pechimuthu ... Appellants/Appellants/ Defendants 2 to 6 Vs $1.Sankaran Pillai (died) 2.Sundararaja Pillai 3.Madasamy Pillai 4.Kuppammal 5.S.Andiappan 6.S.Subramanian 7.S.Gurusamy ... Respondents/Respondent/ Plaintiff (RR4 to 7 are brought on record as L.R of the deceased sole respondent vide order of this Court dated 21.10.2003 made in C.M.P.Nos.18263 to 18266/98.) Prayer in S.A.No.743 of 1998 Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 10.02.1998 passed in A.S.No.97 of 1992 on the file of the Subordinate Judge, Ambasamudram, in confirming the judgment and decree dated 20.12.1989 passed in O.S.No.270 of 1983 on the file of the Additional District Munsif, Ambasamudram. !For Appellants in all the Second Appeals ...Mr.S.Subbiah ^For Respondents in all the Second Appeals ...Mr.A.Arumugam :COMMON JUDGMENT
S.A.Nos.740 to 743 of 1998 have been filed by the respondents/appellants as against the common judgment and decrees dated 10.02.1998 passed in A.S.No.94 of 1992, 96 of 1992, 95 of 1992 and 97 of 1992 by the learned Subordinate Judge, Ambasamudram, in confirming the common judgment and decrees dated 20.12.1989 passed in O.S.No.89 of 1982, 622 of 1982, 621 of 1982 and 270 of 1983 by the learned Additional District Munsif, Ambasamudram.
2. The parties are referred to hereunder according to their litigative status before the trial Court.
3. Niggard and bereft of details, the case of the plaintiff Sankaran Pillai in O.S.No.89 of 1982, 622 of 1982, 621 of 1982 and 270 of 1983 as stood exposited from the plaint could be precisely and concisely portrayed thus:
(i) The suit properties as found set out in the schedule of the plaint under two items would denote and indicate that the first item is measuring an extent of 3 cents of plot wherein there are five houses bearing Door Nos.14 15A, 15B and the second item is measuring an extent of another 3 cents of plot, wherein there are two houses bearing Door Nos.9B and 9C. The first defendant Shailappa Pillai and his wife Pappathi Ammal had no children. The plaintiff is the owner of the suit properties.
(ii) The said suit properties belonged to Papathi Ammal by virtue of she having purchased the plots concerned as per the sale deeds Exs.A.1 and A.2, dated 12.12.1949 and 10.04.1953 respectively from out of her own income and subsequently, she raised the said five buildings by spending her own money.
(iii) The first defendant happened to be her husband and hence those suit buildings came to stand in the name of the first defendant in the Property Tax Register of the Municipality concerned. However, the first defendant had no right of ownership over the suit properties.
(iv) The first defendant and Pappathi Ammal had no issues, and they executed the power deed Ex.A.3, dated 24.05.1973 in favour of the plaintiff and he was also allowed to cultivate the first defendant's Nanja land with effect from 13.04.1973. The said Pappathi Ammal executed the settlement deed dated 05.01.1978 in favour of the plaintiff settling all her properties including the suit properties. However, the ground floor of the house bearing Door No.15A and the upstair portions of the suit houses bearing Door Nos.15A and 15B are in the occupation of the plaintiff. The remaining portion of the suit houses are under the occupation of the tenants of the plaintiff, who has been collecting rents from those tenants. The first defendant with his wife Pappathi Ammal was residing in a separate house belonging to him at Alvarkurichi. However, the first defendant attempted to interfere with the ownership rights of the plaintiff. Hence, he filed the suit. During the pendency of those suits, the first defendant, Sailappa Pillai died. Thereupon, the defendants 2 to 5 were added as legal representatives.
(v) O.S.No.89 of 1982 was filed by the plaintiff Sankaran Pillai as against the first defendant Sailappa Pillai initially for the purpose of declaration that the former is the owner of the suit properties and for injunction or in the alternative for possession.
(vi) O.S.No.621 of 1982 was filed by the same plaintiff as against one Madasamy pillai who according to the plaintiff is a tenant, for recovery of possession and for recovery of arrears of rent and mesne profits, in respect of the ground floor of Door No.15A and the upstair portion of the suit houses bearing Door Nos.15B and 15A. The plaintiffs contention is that, at the instigation of the said Shailappa Pillai, the said tenant refused to pay the rent.
(vii) Similar suit O.S.No.622 of 1982 was filed by the same plaintiff as against one Sundaram Pillai for recovery of possession and for recovery of rents and mesne profits from him.
(viii) Whereas the said Shailappa Pillai filed O.S.No.270 of 1983 as against his wife Pappathi Ammal and her brother Sankaran Pillai, the plaintiff and the aforesaid one Sundaram Pillai and Madasamy Pillai, for declaration of title and for permanent injunction as against the first defendant and the second defendant, Pappathi Ammal and Sankaran Pillai not to interfere with the peaceful possession and enjoyment of the said suit properties and also not to disturb the peaceful possession of the third defendant as tenants of the plaintiff in the suit properties.
4. Denying and disputing the allegations/ averments in the plaint, the first defendant deceased Shailappa Pillai in O.S.No.89 of 1982, during his life time filed the written statement, the gist and kernel of it, would run thus:
(i) The suit plots were purchased by the first defendant from out of his own income in the name of his wife Pappathi Ammal who had no sufficient income or jewels to raise money and purchase the suit properties. The first defendant purchased the plots and raised those five suit houses, which are standing in the name of the plaintiff only in the Property Tax Register and he has been paying the tax. Pappathi Ammal did not execute any settlement deed in favour of the plaintiff, Sankaran Pillai. In fact, Pappathi Ammal and the first defendant conspired together and acted against the interest of the plaintiff who is in possession of the suit property. Accordingly, he prayed for the dismissal of the suit.
(ii) After the death of the first defendant Shailappa Pillai, the defendants 2 to 5 were impleaded in O.S.No.89 of 1992 and thereupon, they filed the written statement highlighting that the first defendant during his life time, executed Ex.B.521, the will dated 12.06.1986 in their farm bequesting the suit properties. Accordingly, they prayed for the dismissal of the suit.
(iii) The defendants in O.S.Nos.621 and 622 of 1982 filed their separate written statements reiterating the case of the first defendant in O.S.No.89 of 1982 and they would contend that they were the tenants under Shailappa Pillai and there were having no connection with the plaintiff Sankaran Pillai.
(iv) In O.S.No.270 of 1983, the first defendant Pappathi Ammal and the second defendant Sankaran Pillai filed the written statement to the effect that the first defendant alone purchased the suit plots as found set out in O.S.No.89 of 1982 in her own name from out of her own sources and she raised the constructions thereon. The defendants 3 and 4, the tenants are colluding with Shailappa Pillai and creating trouble. Accordingly, they prayed for the dismissal of the suit.
5. Based on the above pleadings, the trial Court framed the relevant issues in the four suits and joint trial was conducted.
6. During trial, P.W.1 was examined and Exs.A.1 to A.49 were marked on the side of the plaintiff. D.W.1 to D.W.3 were examined and Exs.B.1 to B.537 were marked on the side of the defendants.
7. Ultimately, the trial Court decreed the suits in O.S.Nos.89 of 1982, 621 of 1982 and 622 of 1982 and dismissed the suit in O.S.No.270 of 1983.
8. Being aggrieved by and dissatisfied with, the common judgment and decrees passed by the trial Court, A.S.Nos.94 to 97 of 1992 were filed before the Subordinate Court, Ambasamudram, which Court also confirmed the common judgment and decrees of the trial Court.
9. Challenging the common judgment and decrees of both the Courts below, the plaintiffs in respective original suits filed these second appeals on the following main grounds among others:
Both the Courts below fell into error in disbelieving the case of Shailappa Pillai and deciding in favour of Sankaran Pillai. The trial Court has not properly framed the issues and the appellate Court neglected to recast the issues for better appreciation. The first appellate Court has not framed properly the point for consideration. The first appellate Court has not properly applied the law relating to Benami transactions. The original documents relating to the suit properties were produced before the Court only by the legal representatives of the deceased Shailappa Pillai and that fact was not noticed by both the Courts below. The consideration for purchasing the suit properties were paid by Shailappa Pillai and the property was purchased only in the name of Pappathi Ammal and that Pappathi Ammal had no funds of her own either to purchase the plot or raise constructions thereon. Since the superstructures are standing in the name of the deceased Shailappa Pillai, the suit properties even if held to be not the exclusive properties of Shailappa Pillai, it should be treated as the joint properties of both Pappathi Ammal and the deceased Shailappa Pillai. Pappathi Ammal had no right to execute the settlement deed in favour Sankaran Pillai. Exs.A.9 and A.10 were not properly considered by both the Courts below. The interpretation of documents, Exs.A.9 and A.10 by the first appellate Court is not tenable. Both the Courts below failed to hold that the factum of execution of Ex.A.5 by the deceased Pappathi Ammal was not proved. Pappathi Ammal was admittedly an illiterate and she did not know how to read and write and in such a case, both the Courts below should have expected clinching evidence from Sankaran Pillai's side to prove the genuineness of Ex.A.5. The first appellate Court's finding on the will, Ex.B.521 is nothing but perverse as on Shailappa Pillai's side, his legal representatives clearly proved the will by examining one of the attesting witnesses to it. Accordingly, both the Courts below failed to hold that the tenants concerned were tenants of Shailappa Pillai and not Sankaran Pillai and Pappathi Ammal. Accordingly, they prayed for setting aside the common judgment and decrees of both the Courts below.
10. At the time of admitting these second appeals, my learned Predecessor framed the following substantial questions of law:
"1. Whether the vacant land purchased by the husband benami in the name of his wife, but constructions put up by him and registered all other service connections standing in the name of the husband could make it that the transaction by purchasing the vacant land in the name of his wife could be a benami transaction?
2. Whether when the property was dealt with by the husband in his own name would be a proof that the husband had no intention to benefit his wife?
3. Whether when superstructures were built up by a person in his own land on the land belonging to another will make the superstructures also belonging to the land owner or both the land owner as well as the owner of the superstructure will take the properties as co-owners?
4. Whether when the alleged settlement deed is disputed is it not necessary that the alleged settlement deed should be proved by calling atleast one of the attestors to prove the alleged settlement deed?
5. Whether when an attestor to the will had been examined and when the evidence is otherwise natural a mere stray answer would make his evidence as unreliable and the will had not been properly proved?"
11. The substantial questions of law are taken together for discussion as they are interlinked with one another.
12. For convenience sake, the parties are referred to hereunder as Shailappa Pillai group and Sankaran Pillai group.
13. A re'sume' of facts absolutely necessary and germane for the disposal of these second appeals would run thus:
Virtually this suit is between the deceased husband and his deceased wife. I would be justified in describing this suit in that manner, in view of the fact that on the one side Shailappa pillai's beneficiaries are contesting the matter and on the other side the deceased Pappathiammal's settlee viz., Sankaran Pillai and consequent upon Sankaran Pillai's death, his sons are contesting the matter. As such, virtually the beneficiaries under the will, Ex.B.521 do claim that they stepped into the shoes of Shailappa Pillai, whereas the legal heirs of Sankaran Pillai would claim that they stepped into the shoes of Pappathiammal and as such this suit is between the deceased husband and his deceased wife, who were at logger heads during their lifetime.
14. The unassailable facts are that Shailappa Pillai during his life time owned properties and it so happened that Ex.A1, dated 12.12.1949 and Ex.A2 dated 10.04.1953, the sale deeds emerged relating to the suit plot areas in favour of Pappathi Ammal executed by her respective vendors. Subsequently, the superstructures were raised in those plots. On the one hand, it is the contention of Shailappa Pillai that from out of his own income he raised such superstructures, whereas it is the contention on the side of Pappathiammal that the superstructures were raised by selling her jewels and also from out of her own sources. However, the superstructures do stand in the name of Shailappa Pillai in the property tax register of the municipality concerned.
15. The learned counsel for Sankaran Pillai group cited the following decisions:
i) Jayadayal Poddar (Deceased) through L.Rs. and another v. Mst. Bibi Hazra and others reported in AIR 1974 SC 171.
ii) Ponnuswamy Nadar v. Narayanan Nadar reported in AIR 1977 Madras 19.
iii) Sm.Surasaibalini Debi v. Phanindra Mohan Majumdar reported in 1965 Supreme Court 1864.
iv) Krishnanand Agnihotri v. State of M.P. reported in AIR 1977 Supreme Court 796.
v) Parvathi Ammal v. Solai Ammal & Another reported in 1997-2-L.W.908.
vi) Kanagarathanammal v. Loganatha Mudaliar and another reported in AIR 1965 Supreme Court 271.
The learned counsel for Sankaran Pillai group by placing reliance on those precedents would contend that the very Exs.A1 and A2 would clearly show that Pappathi Ammal acquired absolute right over it and the plea of benami is untenable and in respect of it he would draw the attention of this Court to the definition of benami transaction and develop his arguments. The aforesaid six decisions are relating to the concept "benami". The learned counsel for Sankaran Pillai group relying on the definition of benami transactions would advance his arguments that Shailappa Pillai group can never be heard to contend that Shailapa Pillai was the owner of the suit plots. Hence, at this state, it is just and necessary to consider the relevant provisions under the Benami Transactions (Prohibition) Act, 1988. Section 3 of the Benami Transactions (Prohibition) Act, 1988 is reproduced here under for ready reference:
"3. Prohibition of benami transactions.- (1) No person shall enter into any benami transaction.
[(2) Nothing in sub-section(1) shall apply to-
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;
(b) the securities held by a-
(i) depository as registered owner under sub-section(1) of section 10 of the Depositories Act, 1996.
(ii) participant as an agent of a depository.
Explanation.- The expressions "depository" and "Participants" shall have the meanings respectively assigned to them in clauses (3) and (g) of sub-section (1) of section 2 of the Depositories Act, 1996].
(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable".
(emphasis supplied)
16. As such, Section 3(2)(a) of the said Act would clearly highlight that so far the properties purchased by the husband in the name of the wife is concerned, it shall be presumed unless the contrary is proved that the said property has been purchased for the benefit of the wife. However, on the contrary it is also clear from the definition that there is no embargo for the husband to prove the benami nature of the transaction between the husband and wife. The pith and marrow of the dicta as found set out in the aforesaid six decisions are only in parimateria with the view taken by me supra. At this juncture, I recollect the decision of this Court in Ammaponnammal v. Shanmugam Pillai(died) and others reported in AIR 1971 MADRAS 370. An excerpt from it would run thus:
"3. Still the question remains, taking into account the relationship between the parties, namely, husband and wife. Whether the husband intended to benefit the wife by the purchase of the property by way of making a gift of the consideration of the property itself. The case of the husband as referred to by the learned District Judge in his judgment is that he never intended to benefit the wife, but it was only because she requested that her name, may be put as vendee in the sale deed, he agreed to do so, just to compliment her. When the relationship between the parties is so close, as husband and wife, the source of consideration plays a minor part and the more important and significant factor will be the motive for the purchase of the property by the husband in the name of the wife. Such a motive is absolutely absent in this case except the self-serving statement of the husband that he agreed to the inclusion of the name of his wife in the sale deed just to compliment her.
In all cases of such transactions, the crucial consideration is whether the husband intended, when he purchased the property in the name of the wife, that the wife should become the owner of the property or did he intend that notwithstanding the title deed standing in the name of the wife, he alone should be the owner of the property. Undoubtedly the intention has to be gathered from all the surrounding circumstances of the case and it is only because of these features. Several tests have been propounded for consideration in deciding the question of benami. In this particular case, admittedly after the purchase of the property in the name of the wife, patta was transferred in the name of the wife and kist receipts stood in the name of the wife. Certainly all these things can be explained by the fact that the person in whose name the title deed stood was the wife and therefore these documents also stood in her name. But in cases of such close relations, none of these considerations will be of a decisive character and the entirety of the circumstances should be taken into account for coming to a conclusion. As far as the present case is concerned, there is one crucial admission in the evidence of the plaintiff himself, which both the courts below have completely failed to take note of. That statement of the plaintiff is:
"Till 1954 I was under the impression that the lands belonged to her and that the C schedule property also belonged to her".
The C schedule property referred to was the subject-matter of a settlement by the husband in favour of the wife, for which the wife after 1954 had to file a suit and obtain possession from the husband. However, as far as the present suit is concerned, the subject-matter is the lands referred to in the statement of the plaintiff (extracted above) and he has clearly stated that till 1954 he was under the impression that the lands belonged to her. This statement can be explained only on the basis that when he purchased the property under Ex.B-1 in 1943 in the name of the wife, he intended that the property should belong to the wife and only when she left the house of the husband in 1954, he changed his mind and wanted to put forward his own claim to the said property. Once the intention that he wanted to benefit the wife and he wanted the wife to be the owner of the property, at the time when the property was purchased, is established clearly and indisputably, no amount of change of intention subsequently will have the effect of divesting the title which the wife acquired under the document under which the property was purchased in her name. Therefore, the admission of the plaintiff in this case as extracted already, is the clearest possible evidence of his intention that the wife should be the owner of the property and if so, the case set up by the plaintiff of benami fails miserably and totally. It is this aspect which the courts below have failed to bear in mind.""
17. It is therefore clear that if a husband purchases a property in the name of his wife intending that wife should be benefited then it amounts to virtually a gift given in favour of the wife and it could be treated as the property of the wife. However, the learned counsel for Shailappa Pillai group would contend that Shailappa Pillai might have felt that there would have been interference from his relatives and hence he might have purchased it in the name of his wife and that it would not confer any right on Pappathi Ammal.
18. Be that as it may, at the time of purchasing the properties as per Exs.A1 and A2, both of them were living together and even after arisal of the dispute between the husband and wife no steps have been taken by the husband to get the plot area transferred in his name. As per Section 3(2)(a) of the Benai Transactions (Prohibition) Act, 1988 the legal principle enures to the benefit of Pappathi Ammal. But on the other hand in reality what happened is that the superstructures came to be registered in the name of Sailappa Pillai in the property tax register.
19. The learned counsel for Sankaran Pillai group would contend that merely because superstructures are standing in the name of Shailappa Pillai in the property tax register, there is no hard and fast rule that it should be deemed to be his property. He would also contend that once the land belongs to the wife, whatever be the superstructures raised thereon should be deemed to be that of the wife and the contrary should be proved by clinching evidence of Sankaran Pillai group and that they failed to prove.
20. At this context, the learned counsel for Sankaran Pillai group would cite the Judgment of this Court in S.A.No.316 of 1983 dated 12.04.1996. However, the learned counsel for Shailappa Pillai group would cite the decision of the Hon'ble Apex Court in R.V.E.Venkatachala Gounder v. Arulmigu Viswessaraswami & V.P Temple and another reported in 2003(8) SCC 4548. The said decision would show that the Judgment cited by the learned counsel for Sankaran Pillai group was reversed in the appeal by the Hon'ble Apex Court. Paragraph No.26 of the aforesaid decision is extracted hereunder for ready reference:
"26. From the other documents produced by the appellant i.e. the account books and Exhibit A-34 rent note, it is proved that the tenant had always been treating the appellant as the landlord and paying the rent to him. Only after 1969 the tenant started paying rent to the temple treating it to be the landlord. In the property tax register the appellant and prior to that his predecessors have been shown to be the owners. An entry in the municipal record is not evidence of title. The entry shows the person who was held liable to pay the rates and taxes to the municipality. The entry may also, depending on the scope of the provision contemplating such entry, constitute evidence of the person recorded being in possession of the property. Such entries spread over a number of years go to show that the person entered into the records was paying the tax relating to the property and was being acknowledged by the local authority as the person liable to pay the taxes. If the property belonged to the temple, there is no reason why the temple would not have taken steps for having its own name mutated into the municipal records and commencing payment of taxes or claimed exemption from payment of taxes if the charity was entitled under the law to exemption from payment of taxes. The temple has not been able to produce any evidence, oral or documentary, to prove its title to the property. Only because the tenant attorned to the temple and started paying rent to the temple in 1969 or that the temple paid the property tax to the Municipal Committee after 1969 does not establish its title to the property in question. This documents are not of much evidentiary value as these documents came in existence after the dispute had arisen between the parties. In the absence of any other lawful claimant, the appellant on the strength of the documents produced by him was rightly held to be the owner by the courts below the High Court. Attornment by the tenant in favour of the temple was also rightly held to be invalid. The appellant, in our opinion, would be entitled to recover possession as well as the arrears of rent".
21. Placing reliance on it, the learned counsel for Shailappa Pillai group would argue that the tax receipts speaking in the name of Shailappa Pillai cannot be labelled or termed as worthless documents or documents which would not enure to the benefit of Sailappa Pillai to contend that he is the owner of it, whereas the learned counsel for Sankaran Pillai group would contend that even in the Hon'ble Apex Court's Judgment, there is nothing to show that simply because the tax receipts and the property tax registers speak in the name of a particular person, he should be deemed to be the title holder. The truth lies somewhere in between them their two rival arguments. What the Hon'ble Apex Court highlighted in the cited decision is that such entries in the property tax register and tax receipts are having probative force of its own and cannot be simply be slighted or disregarded as worthless piece of documents. Here it is not that some stray tax receipts have been produced in the name of Shailappa Pillai.
22. On the side of Shailappa Pillai group voluminous documents Ex.B270 to B466 were marked and those are relating to the superstructures stood in the name of Sailappa Pillai and that he had been paying the house tax continuously for several decades. As such those documents cannot simply be described as stray documents or cooked up documents which emerged for the purpose of buttressing the claim of Sailappa Pillai. These documents should be read in conjunction with the Hon'ble Apex Courts verdict in the decision cited supra.
23. It is the admitted case of both sides that bad blood started running in the relationship between the husband and the wife and several years before the death of Pappathi Ammal itself, there arose misunderstanding between the husband and the wife and she was taking the support of her brother-in-law and virtually she died, while she was staying along with her brother Sankaran Pillai. In fact, in Ex.B521, the will also, Shailappa Pillai himself set out the fact that both the husband and the wife could not see eye to eye; each one was trying to cut the ground under the feet of the other; they were at logger heads and they were at daggers drawn. When such was the position, it is not known as to what steps Pappathi Ammal had taken during her lifetime to get the name of Sailappa Pillai removed from the property tax register relating to the superstructures. In fact, during the lifetime of Pappathiammal itself, litigations arose and in fact she even before executing the settlement deed Ex.A5 dated 05.01.1978, in favour of Sankaran Pillai could have filed a suit or initiated some proceedings for the purpose of getting mutated her name in the property tax register in the place of Sailappa Pillai. But that was not done so. Ex.B2 to 252 also would reveal that the electricity connection was in the name of Sailappa Pillai only and he had been paying it not for a short time, but for several decades together.
24. It is a trite proposition of law that preponderance of probabilities would govern the adjudication in civil cases. The learned counsel for Sankaran Pillai group would contend that Pappathi Ammal by selling her jewels and from her own source of income, raised such superstructures, for which the learned counsel for the Sailappa Pillai group would correctly question it by arguing that had really Pappathi Ammal from out of the sale proceeds of her jewels and also from her other own source of income, she would not have allowed her husband to have his name in the property tax register relating to the superstructures and also for the electricity connection in his name.
25. The learned counsel for Sailappa Pillai group drew the attention of this Court to the trial Court's finding at paragraph No.24 of the Judgment and advanced his arguments that the trial Court itself gave a finding that the said Pappathiammal was very shrewd and particular regarding her income and accounts and that such a lady might not have simply allowed her husband to project himself as the owner.
26. The learned counsel for Sankaran Pillai group would argue that the oral evidence has been adduced on their side through P.W.1, viz., Sankaran Pillai to the effect that Pappathiammal actually raised superstructures from her own source. Except the evidence of P.W.1, Sankaran Pillai, there is no other clinching evidence to show that it was Pappathiammal, who raised such superstructures during the year 1959. On the other hand, the Court will be justified in proceeding on documentary evidence rather than on the interested testimony of the parties. As such, the deposition of P.W.1 is his ipse dixit. No doubt, the learned counsel for Sankaran Pillai group would point out that the evidence of R.W.1, Sorimuthu, who at that time was aged about 26 years could not be believed. No doubt on both sides, when clinching evidence pointing towards the very factum source of income emanated for raising superstructures is lacking, then the Court has to go by the available documantary evidence only and not based on the interested oral testimonies. To the risk of repetition without being tautologous, I would highlight that even though it is not the case on the side of Sankaran Pillai group that Shailappa Pillai was only an agent of Pappathi Ammal, who was owning properties in her name, nonetheless the admitted evidence is to the contrary. P.W.1, himself admitted that he was the tenant under Shailappa Pillai and cultivated his lands and Shailappa Pillai instituted suit for recovery of rents from him and in such a case the preponderance of probabilities are in favour of the contention on the side of Shailappa Pillai group to the effect that Shailappa Pillai had sufficient funds to raise superstructures and it cannot simply be held that Shailappa Pillai as the husband of Pappathiammal acted as her agent and raised constructions by using the finance of his wife.
27. As such, considering the pros and cons of the matter, I am of the considered opinion that the plot belonged to the wife Pappathiammal and the superstructures were raised from out of her funds of the husband Shailappa Pillai and as such they have had joint ownership over the entire suit properties both the plots area and the superstructures. On hearing the aforesaid argument of the learned counsel for the Sankaran Pillai group, my mind is redolent with the maxim "Quicquid plantatur solo solo cedit" (Whatever is affixed to the soil belongs thereto). This has to be understood in proper perspective and not blindly.
28. The question might arise as to how to view when the plot belongs to the wife and the superstructures belongs to the husband? Here, indisputably and indubitably for a pretty long time without any partition during their lifetime, the matters went on. In this factual matrix, different proportion cannot be fixed relating to their rights as they happened to be husband and wife, when the superstructures emerged they lived together and thereafter also. In such a case the proportion should be equal. In such a case it should be held that both the husband and the wife had joint interest in the entire suit properties, which comprised both the plots and the superstructures accordingly in equal proportion.
29. The next phase analysis is as to whether Ex.A5, the settlement deed and Ex.B.521, the will are genuine documents. The learned counsel for Sailappa Pillai group would impeach the settlement deed on the main ground that at the time of executing the settlement deed, Pappathi Ammal was an old, illiterate lady and in such a case the doctrine of 'nonest factum' would come in to operation and there are catena of decisions to the effect that such sort of execution of settlement deeds by illiterate ladies, should be called upon to be proved beyond reasonable doubts by the Courts.
30. The learned counsel for Sailappa Pillai group would also draw the attention of this Court to Section 122 of Transfer of Property Act and develop his arguments that even though the nomenclature 'settlement deed' is assigned to Ex.A5, nonetheless in stricto sensu, it is a gift deed requiring attestation by two persons. In accordance with Section 68 of the Indian Evidence Act, the attesting witnesses should have been examined; but it was not done so, but on this aspect, the trial Court failed to consider the case. The first appellate Court also fell into error in holding that Ex.A5, the settlement deed required no attestation and consequently Section 68 of the Indian Evidence Act was not applicable.
31. Whereas the learned counsel for Sankaran Pillai would submit that Ex.A5 settlement deed is covered under both the definitions of settlement as well as gift. Over and above that he would also develop his arguments that as per Section 17 of the Registration Act and as per Transfer of Property Act, there is no necessity that a particular document should come within anyone of the recognised legal forms; so far Ex.A5 is concerned, there is transfer of ownership of the property from Pappathiammal to Sankaran Pillai and it is a registered document and that it satisfied the requirements of Section 17 of the Registration Act and nothing more is required. I would atonce observe that such an argument cannot be countenanced. It is open for Sankaran Pillai group to argue that it comes under the definition of both settlement as well as gift, but it would not lie in their mouth to contend that even though a document may not be come under any one of the recognised forms under the legal procedures, it could be treated as a valid document. Necessarily, when a document is executed transferring the ownership right to another, it should be in anyone of the recognised legal modes. No more elaboration in this regard is required. Be that as it may, now we are not concerned with the form of the document but concerned with the validity of Ex.A5. To the risk of repetition, I would stress upon the fact that the preponderance of probabilities would govern the adjudication in civil cases and robust common sense is required to adjudge in a case as to whether a particular document might have been validly executed by one person in favour of another. Here, there is overwhelming evidence to prove that during the lifetime of Pappathiammal as well as Shailappa Pillai and considerable time before the emergence of Ex.A5, the settlement deed both were not in good relationship. In fact, the grievance of Shailappa Pillai is that Pappathiammal was under the influence of her brother and she was not obeying Shailappa Pillai's directions. In fact, the learned counsel for Sankaran Pillai group would draw my attention to Ex.B.521, the will and point out that even as per that will, which is relied on by the other side, Sankaran Pillai and the deceased Pappathiammal were together and they were acting against Shailappa Pillai's interest. Hence, in these circumstances, there is no point in artificially creating doubt as though Sankaran Pillai might have beguiled, hoodwinked, bamboozled her into some wrong notion and got her signatures and prepared Ex.A5 falsely. In fact, Shailappa Pillai himself during his lifetime filed the suit in O.S.No.270 of 1983 as against both Sankaran Pillai and Pappathiammal and they have filed jointly written statement as against Shailappa Pillai and in such a case it would clearly evince and evidence that in all probabilities, Pappathiammal would have executed the settlement deed consciously and voluntarily in favour of her brother and that too in the absence of any children born to Shailappa pillai and Pappathiammal. As such, in this proven factual circumstances, I am having no doubt about the factum of Pappathiammal having executed Ex.A5, the settlement deed in favour of her brother.
32. Once again, some academic discussion is required at this juncture. Whether this deed, Ex.A5, the settlement deed could be termed as settlement in stricto sensu at all and whether Sankaran Pillai could be taken as dependant of Pappathiammal. The normal rule is that a settlement deed could be executed by settlor in favour of settlee, who is depending upon the former. In this connection, I could recollect the decision of this Court in the Chief Controlling Revenue Authority, Board of Revenue, Madras v. P.A.Muthukumar reported in AIR 1979 Madras 5. An excerpt from it wound run thus:
"5. The word 'settlement' has been defined in the Indian Stamp Act, but not the word 'Trust'. Sec.2(24)(b) defined the word 'settlement' as follows:
"Settlement' means any non-testamentary disposition in writing of movable or immovable property, made for the purpose of distributing property of the settlor among his family or those for whom he desires to provide or for the purpose of providing for sons persons dependent on him".
6. We are omitting clauses (a) and (c) of Sub-Sec.(24) of Sec.2 of the Act, for, they are not relevant for the purpose. According to Sec.3 of the Indian Trusts Act, 1882, a 'trust' is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by the owner, or declared and accepted by him for the benefit of another, or of another and the owner. The instrument in question does not in our view purport to distribute property of the settlor among the members of his family nor did he evince and unequivocal desire to provide property for some person dependent on him. While interpreting the word 'settlement' in S.2(24) of the Indian Stamp Act, it appears to us that the emphasis should be on the intention of the author of the trust to distribute the property among members of his family or to those who are near and dear to him. In the absence of a demonstrative exhibition of that intention to distribute his property among such members or relatives of his, it cannot be said mechanically by the use of the expressions such as 'his heirs' or 'his minor son' etc. in a document that such is the intention of the author. ... ... ...
We have already made it clear, that the quintessence of the definition of the word 'settlement' in Sec 2(24)(b) of the Indian Stamp Act is that the property should be distributed among the members of the family of the author of the trust or should be ordained to be given to those near and dear to him. In the absence of any such clause express or implied to be culled out by necessary implication from out of the instrument to conclude about distribution of property, either movable or immovable among the settlor's heirs or relatives, it would be difficult to hold that such an instruments should be treated as a settlement".
However, in this case, there is possibility of Sankaran Pillai group arguing, though not argued to the effect that the brother of Pappathiammal could be taken as one dependant upon her and in fact he was also cultivating the land under her and in such a case he could be treated as one dependent upon her. I make it clear that this is not an argument forthcoming from the side of Sankaran Pillai group, but the Court itself suo motu apply its reasoning and finds that even if Ex.A5 is technically viewed, yet by treating Sankaran Pillai as dependant of the deceased Pappathiammal. Ex.A5 can be taken to be valid. In such view of the matter for settlement deed no two attesting witnesses are absolutely necessary and hence it need not be proved strictly in accordance with Section 68 of the Indian Evidence Act as observed by the first appellate Court. However, I would like to point out that barely because a document requires no attestation that it does not mean that barely it should be taken as a genuine document.
33. However, in this case in view of the probabilities as discussed by me supra, I do not incline to doubt the genuineness of the settlement deed.
34. The next phase of the discussion is on Ex.A521, the will. The learned counsel for Shailappa Pillai group would draw the attention of this Court to the evidence of D.W.2, who clearly and categorically deposed that he attested the will executed by Sailappa Pillai. The first appellate court fell into error in assuming as though the one other witness was not examined and that there were no adequate explanations for that. But the learned counsel for Sailappa Pillai would clearly draw the attention of this Court to the last sentence of the deposition of D.W.2, who categorically and clearly deposed that the one other witness died and that it was not challenged by the other side. As such the requirements of the law was fully satisfied in proving the will. What are all the probabilities which I attributed for countenancing that Ex.A5 is a valid document, the same probabilities are applicable in favour of upholding the validity of the will also.
35. The learned counsel for Sankaran Pillai group cited the following decisions:
i) Suguna Bai v. Muniammal @ Dhanalakshmi and others reported in (1996)1- M.L.J.-596.
ii) Govindan Chettiar(Died) v. Akilandam alias Seethalakshmi and 24 others reported in 1997-3-L.W.673.
iii) Kashibai w/o. Lachiram & Another v. Parwatibai w/o.Lachiram others reported in 1996 -1-L.W.317.
iv) Govindaraju(Died) and others v. Rathinammal and others reported in 2004(3) CTC 9.
v) Smt. Kalawati Devi v. Parmanand Mandal and another reported in AIR 2006 PATNA 22.
vi) R.V.E.Venkarachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple reported in AIR 2003 SUPREME COURT 4548.
vii) Arulmigu Viswerarswami and Veeraghava Perumal Temples rep. by its Executive Officer, Tiruppur, Coimbatore District. v. R.V.E.Venkatacha Gounder and Another reported in 1996 TNLJ P.219.
All those decisions are on the well settled legal proposition that a will should necessarily be proved strictly as per Section 68 of the Indian Evidence Act. There is no quarrel over such a proposition. But my finding is that here Sailappa Pillai group clearly discharged their burden in proving the will. Over and above that the learned counsel for Sailappa Pillai group cited the decision in Pentakota Satyanarayana & others v. Pentakota Seetharatnam & others reported in 2006-2-L.W.658. An excerpt from it would run thus:
"23. ... Section 68 of the Indian Evidence Act, 1872, deals with proof of execution of document required by law to be attested. This section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting witness alive and subject to process of the Court and capable of giving evidence, he must be called to prove execution. Execution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of legal act. Section 63 of the Indian Succession Act gives meaning of attestation as under:-
"Section 63: Execution of unprivileged will,- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, (or an airman so employed or engaged) or a mariner at sea, shall execute his will according to the following rules:
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as will.
(c) The will shall be attested by two or more witnesses, each 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 by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall 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."
24. It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 68 includes attestation as required by law.
25. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-register that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator.
26. In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mine, that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that propounders themselves took a prominent part in the execution of the Will which confer on them substantial benefits. In the instant case, the propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P.Srirammurthy. In his written statement, he has specifically averred that he has executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shift to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same".
36. This is virtually a recent decision on the subject. In fact, the Hon'ble Apex Court has clearly laid down the law to the effect that the Registering Officer himself could be taken as one of the attesting witnesses and the presumption as per illustration (e) appended to Section 114 of the Indian Evidence Act also enures to the benefit of the propounders of the will and it has been held that the genuineness of such registered will could be presumed also. Hence, I am having no hesitation to hold that Ex.B.521, the will is a genuine one. Further, there are also evidence in support of such a finding for the reason that during the lifetime of Shailappa Pillai himself he instituted the suit in O.S.No.270 of 1983 as against Pappathiammal and the will emerged during the year 1986, whereas he died two years thereafter and this is also a registered will, wherein he clearly spelt out as to what necessitated him to execute the will. In fact, the will emerged after a few days after the death of Pappathiammal. All these circumstances would further fortify and buttress the plea of Sailappa Pillai group concerning the genuineness of the will. Both the Courts below without adverting the legal points highlighted supra misdirected themselves and simply decided the matter in favour of Sankaran Pillai group.
37. The trial Court in paragraph Nos.26,27,28 and 30 discussed the points in a one sided manner without considering the pros and cons of the matter. In fact, the trial Court finds fault with Sailappa Pillai as though earlier he made admission in various documents executed by him in favour of his wife averring that his wife had separate properties, whereas in the will, Ex.B521, he stated otherwise and that it should not be believed. The approach of the Court is totally erroneous. The Court should have looked for independent evidence, relating to raising of superstructures, when documentary evidence relating to raising of superstructures is positive and conveys a state of legal position, then contrary to it, the Court is not expected to resort to any ratiocination of its own to decide a case in favour of one party alone. Here, the trial Court went on finding fault with Shailappa Pillai's attitude forgetting a moment that absolutely there is no positive evidence to show that Pappathiammal had sufficient income to raise the superstructures. Quite contrary to the clinching evidence available as discussed supra relating to the will, Ex.B521, the trial Court and the first appellate Court held as though the will was not a genuine one. By no stretch of imagination by applying any standard the findings of both the Courts below could be countenanced as something akin to law at all and as such those decisions are perverse warranting interference.
38. At this contest, it has to be viewed as what could be done in this case. The Sailappa Pillai group would contend that the entire property belongs to them, whereas Sankaran Pillai group would claim that the entire suit property belongs to them. How to resolve this conflicting claims. My above findings relating to the joint nature of the entire suit property would clearly come into operation for resolving this dispute. Even though, the settlement deed was executed by Pappathiammal for the entire property and similarly Shailappa Pillai executed the will relating to the entire property to his beneficiaries, nonetheless both should be understood to the effect that they only transferred their respective rights in the suit property. As has been already highlighted supra Sailappa Pillai and Pappathiammal had joint interest in the suit properties and accordingly the present claimants under them also should share the suit property as two groups equally and the proper course is for them to institute a partition suit. Accordingly, in the suit to be instituted by either of the groups, each group would be entitled to 50% of the suit property and accordingly they could get their remedy in the way known to law. There in that suit, the share of each group shall no more res integra as the shares are decided in this Judgment itself.
39. The learned counsel for Sailappa Pillai group would submit that the superstructures are not existing in the entire plot area. I would disagree with his view for the reason that in the schedule of properties, under the two schedules, each plot area is comprised of a small extent of three cents of land only. In the first small plot area, there are three superstructures and in the second small plot area, there are two superstructures. As such, over and above it cannot be stated that Pappathiammal might have had extensive vacant plot area, which could be treated as her exclusive property. The appertinent area of those buildings cannot be treated as her exclusive property. As such, the joint nature of the suit properties is implied in the facts and circumstances of the case and it cannot be held otherwise.
40. Accordingly, the substantial question of law No.1 is decided to the effect that even in a case of husband purchasing property from out of his own source of income in the name of his wife, if his intention turns out to be that he wanted to benefit his wife, it would be her property and in this case as per Ex.A1, the wife is declared to have become the owner of the plot area over which, the superstructures raised by the husband are standing and as such the question of benami plea does not arise in this case.
41. The substantial question of law No.2 is decided to the effect that in view of the overwhelming evidence available on the side of the Shailappa Pillai group, it is held that the superstructures were constructed by Shailappa Pillai from out of his own money and he retained those superstructures in his name without any intention at that time to benefit his wife.
42. The substantial question of law No.3 is decided to the effect that in view of the discussion supra, even though the wife happened to be the owner of the plot area and the husband happened to be the owner of the superstructures, both by their subsequent contact allowed to be legally construed as joint properties of both the husband and the wife.
43. The substantial question of law No.4 is decided to the effect that in view of the preponderance of probabilities and the evidence available on record, the settlement deed is held to have been executed by Pappathiammal in favour of her brother Sankaran Pillai and hence non-examination of attesting witnesses was not fatal to the case of the Sankaran Pillai group.
44. The substantial question of law No.5 is decided to the effect that in view of the clinching evidence of one of the attestors of the will, Ex.A9, viz; D.W.2 available on record and the other attesting witness died and the said will is the registered will and there are other circumstances available as per evidence, there is no doubt about the genuineness of the execution of the will by Shailappa Pillai in favour of the beneficiaries concerned and I could see no discrepancy or stray wrong answer by any of the witnesses on the side of the Shailappa Pillai group, which would go against the genuineness of the execution of the will.
45. With the above observations, these appeals are disposed of. Accordingly, these second appeals are partly allowed. Correspondingly, the four original suits shall be construed as decided. The tenants are bound by this decision accordingly. In the facts and circumstances of this case, there is no order as to costs. Consequently, connected Miscellaneous Petitions are closed.
smn To
1. The Subordinate Judge, Ambasamudram.
2. The Additional District Munsif, Ambasamudram.