Madras High Court
Vijay vs N.Dakshinamoorthy on 26 March, 2018
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.03.2018 CORAM: THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA S.A.No.80 of 2015 and M.P.No.1 of 2016 Vijay .. Appellant/Plaintiff Vs. N.Dakshinamoorthy .. Respondent/defendant * * * Prayer : Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgement and decree dated 24.11.2014 made in A.S.No.28 of 2012 on the file of the learned Principal Distirct Judge, Tindivanam, reversing the judgement and decree dated 29.02.2012, passed in O.S.No.255 of 2007 on the file of the Additional District Munsif, Tindivanam. * * * For Appellant : Mr.Ravikumar Paul, Senior Advocate M/s.Paul and Paul For Respondent : Mrs.Hema Sampath, Senior Advocate Ms.R.Meenal J U D G E M E N T
The plaintiff is the appellant and the suit is filed by the plaintiff for declaration that he is absolutely entitled to the suit properties, for recovery of possession and also for mesne profits.
2. The case of the plaintiff, as projected in the plaint, is as follows :
(i) The suit property is situated in an total extent of 0.65 cents in Survey No.299/13 and 299/13A, in which, an extent of 0.50 cents within the boundaries as given in the plaint. The suit property originally belonged to the defendant. He had executed a settlement deed in favour of his only daughter Anandhi on 28.03.2002. The settlement deed also mentions that the suit property was given possession to her. The above said Anandhi's husband was one Arulraj, who is said to have constructed a shopping complex in the suit property by spending a considerable amount.
(ii) While so, the above said Anandhi died intestate on 27.07.2005 leaving behind her husband Arulraj as the only sole surviving heir. On the death of Anandhi, her husband Arulraj claimed to be the absolute owner of the property.
(iii) Anandhi's husband Arulraj was murdered on 23.08.2006. The plaintiff is the brother's son of the deceased Arulraj. It is stated that the said Arulraj had executed a Will on 02.05.2006 making a bequest in favour of the plaintiff. Therefore, the plaintiff claims to be the owner of the property, after the demise of the said Arulraj, pursuant to the Will dated 02.05.2006.
(iv) Thus, claiming lawful ownership over the property, the plaintiff filed the suit in O.S.No.255 of 2007 on the file of the District Munsif Court, Tindivanam, seeking a declaration of the title over the same.
3. The suit was resisted by the defendant contending that the suit property belonged to the defendant. It is also admitted that he had executed a settlement deed in favour of his daughter Anandhi on 28.03.2002. However, the same was not acted upon, as his daughter Anandhi herself did not know about the execution of the settlement deed. During her lifetime, the said Anandhi had never accepted the settlement deed nor acted upon the same. The defendant further denied the fact that the buildings on the suit property were constructed by Arulraj, husband of Anandhi. It is also denied that after the death of Anandhi on 27.07.2005, the property automatically devolved upon her husband Arulraj. The said Arulraj never let the shops for rent or collected rents from the same. The suit property had a total extent of 0.65 cents, of which, there are shops in an extent of 0.15 cents of land and the rest of the land, i.e., 0.50 cents is lying vacant. The plaintiff had deliberately omitted the shop portion and had filed the suit only for the landed portion in order to avoid payment of court fees. It is the specific case of the defendant that the shops were constructed only by him and he had inducted the tenants. For the construction of the shops, he had also borrowed loan from the Land Development Bank. The defendant, being the owner of the property, had never handed over the possession to the settlee and he had been in continuous possession of the same, after the death of Anandhi. The defendant had also cancelled the settlement deed on 04.09.2006. Thus, the defendant, who is admittedly the owner of the property, had sought for the dismissal of the suit.
4. On the side of the plaintiff, he got examined himself as P.W.1, in addition to examining one Iyyanar as P.W.2, and marking Exs.A.1 to A.18. The defendant examined himself as D.W.1 and marked Exs.B.1 to B.14.
5. The trial court decreed the suit and on appeal in A.S.No.28 of 2012, the same was reversed by the lower appellate court, namely, Principal Subordinate Court, Tindivanam. Aggrieved by the same, the second appeal is preferred.
6. The following questions of law were formulated for consideration of this Court in the second appeal :
1. Whether the Settlement Deed dated 28.03.2002 executed by the defendant to his daughter Ananthi has been acted upon and the same had conveyed title to Ananthi ?
2. Though the revocation deed dated 4.9.2006 which was executed after the demise of Ananthi is valid in law ?
3. Whether the lower appellate court was right in holding that the Will executed by Ananthi on 2.5.2006 has not been proved ? And
4. Whether the lower appellate court was right in holding that on the demise of Arul Raj, the defendant will inherit the property as per Section 8 of the Hindu Succession Act ?
7. The learned Senior counsel for the appellant/plaintiff contended that after the death of Anandhi, the property devolved upon her husband Arulraj. The said Arulraj had left a Will in favour of the plaintiff, as per Ex.A.4. The plaintiff is only the brother's son of the said Arulraj. The plaintiff had produced Exs.A.10 to A.15, which are the Tamil Nadu Electricity Board Receipts to show his possession.
8.Heard the learned Senior Counsel for the respondent/defendant.
9. It is admitted by the plaintiff that the defendant is the original owner of the suit property. The defendant is none else than the plaintiff's paternal aunt's husband. The defendant's daughter was Anandhi and the defendant had executed a settlement deed in her favour on 28.03.2002. The said Anandhi was given in marriage to one Arulraj, who is her maternal uncle. There was no child born to Anandhi and Arulraj out of their wedlock. While so, on 27.07.2005 the said Anandhi died intestate. After her death, her husband Arulraj claimed to be the owner of the property and the plaintiff is his brother's son. He is said to have executed the Will dated 02.05.2006 in favour of the plaintiff. The plaintiff is basing his claim on the said Will. Therefore, the first question that has to be decided is as to whether the settlement deed in favour of Anandhi dated 28.03.2002 executed by the defendant was acted upon and the same had conveyed any title to her.
10. The defendant examined himself as D.W.1, who had deposed that his wife had died even before the death of his daughter. He had categorically stated that even during the time, the settlement deed was executed, his daughter Anandhi and son-in-law Arulraj were not on very good terms and only the defendant had met the expenses for executing the settlement deed and for registration at Marakanam. He has also admitted that the settlement deed was not handed over to his daughter. It is also stated by him that the said settlement deed was cancelled by him after the death of his daughter on 04.09.2006. As the daughter's husband Arulraj was murdered, he cancelled the settlement deed. He had also pleaded ignorance about the execution of the alleged Will by Arulraj. From the said facts, it is made clear by the defendant that his intention was to benefit his only daughter Anandhi and thus, he executed the settlement deed in her favour. When the defendant's daughter Anandhi died, the defendant had not taken any action, but when the son-in-law was also murdered, he was forced to cancel the settlement deed, as the property belonged to him.
11. The plaintiff, who was examined as P.W.1, has pleaded ignorance of the settlement deed. He had also specifically stated that he had not seen settlement deed, till such time Anandhi was alive. He had seen the same only after the death of Anandhi's husband Arulraj. He also had said that he does not know who paid the tax for the suit buildings. He had also stated that he does not know who had made construction on the suit property. From the above facts, it is clear that the defendant, who is the father of Anandhi, wanted to benefit the daughter and thus, executed a settlement deed. When, unfortunately, the daughter died, the defendant did not cancel the settlement deed, may be thinking that his son-in-law can enjoy the same. However, when the son-in-law was also murdered, he had cancelled the settlement deed.
12. Be that as it may, the next question is as to whether the Will executed by Arulraj in favour of the plaintiff on 02.05.2006, which is marked as Ex.A.4, is true and valid and that the same has been proved in the manner known to law ?
13. The plaintiff was examined as P.W.1, who is the beneficiary under the Will. In the cross-examination, P.W.1 has stated as follows:
vf;!;gpl;/V/4 gj;jpuk; vd;dplk; vg;go te;jJ vd;why; mUs;uh$; ,we;jgpd; vLj;J te;njd;/ me;j capiy ehDk; vd; jfg;gdhUk; ngha; jhd; me;j capiy vLj;J te;njhk;/ gj;jpuj;ij bgl;oapy; itj;J g{l;oapUe;jhh;/ Vw;bfdnt capy; vGjpitj;jJ gw;wp bjupahJ/ nfs;tpgl;L nfhhpapUe;njhk;/ ///// ,Jnghd;W capy; cs;sJ gw;wp eh';fs; nghyPrhuplk; Twtpy;iy/ nghyPrhuplk; capy; gw;wp brhd;dhy; re;njfk; tUk; vd;w fhuzj;jhy; Twtpy;iy vd;W brhd;dhy; ehd; ,ij kWf;fpnwd;/ ,J cz;ikahd capy; my;y vd;gjhy; jhd; ,e;j capiy kiwf;fpnwd; vd;W Twpdhy; rupay;y/ mUs;uh$; vdf;F capy; vGjpitj;jpUf;fpwhh; vd;gJ gw;wp ntWahuplkhtJ TwpapUe;jhuh vd;W vdf;Fj; bjupahJ/ MWKfk;. fnzrd; Mfpnahh; brhy;ypj;jhd; vdf;F capy; gw;wp bjupa[k;/ rhl;rp khw;wp brhy;fpwhh;/ ma;adhh; kw;Wk; MWKfk;. mUs;uh$; ,we;J 2 khjk; fHpj;J jhd; capy; gw;wp mth;fs; vd;dplk; Twpdhh;fs;/ ////
14. When the plaintiff has taken an active part in the execution of the Will, the burden is on him to establish the execution of the same in the manner known to law. It is also not mentioned in the plaint that the plaintiff was adopted by Arulraj during his lifetime and that he was given a bequest. On the side of the plaintiff, Exs.A.8 and A.9 were pressed into service. They are the insurance policies taken by the deceased Arulraj from ICICI. In the said policies, the plaintiff - Vijay was shown as the nominee. As the said Anandhi - wife of Arulraj died on 27.07.2005, Arulraj had shown the plaintiff as the nominee. Exs.A.8 and A.9 only show the plaintiff as a nominee and not as a legal heir or even the adopted son of the deceased Arulraj. Merely because the name is found in the insurance policy as nominee, it will not automatically entitle the plaintiff to be the legal heir of the deceased Arulraj. In fact, in the cross-examination, it has been elicited that there was an arrangement for performing the second marriage of Arulraj within which time he was murdered. Therefore, it can be inferred that Arulraj did not intend the plaintiff to be his legal heir.
15. However, when the plaintiff has produced Ex.A.4 Will, which is admitted in evidence, the same has to be proved in the manner known to law. It is pointed out by the learned counsel for the defendant that in the Will, the testator Arulraj had not specifically stated that the properties which belonged to his wife and devolved on him were bequeathed. The will does not specifically mention any properties with correct description. When the Will does not even specifically mention which are the properties that were bequeathed in favour of the plaintiff, the Will is said to have executed in suspicious circumstances. Section 68 of the Evidence Act deals with proof of execution of the document required by law to be attested. The provisions prescribe the requirements of the nature of proof. The Will has been attested by two persons, one is Iyyanar and the other person is Arumugam. Ayyanar has been examined as P.W.2. For proving the Will, the attestors have to be examined and the attestors have to specifically see the testator affixing the signature or thumb impression and each of the attestor mutually see the other signing in the presence of the testator. But in this case, only one attestor was examined. He has spoken about the Will as follows :
me;j capy; thDhh; gj;jpu vGj;jh; j';f kndhfud; vd;gth; vGjpdhh;/ me;j capypy; ehDk; v';fs; Ciur; nrh;e;j bja;tehafk; Fkhuh; MWKfk; vd;gUtk; rhl;rp ifbaGj;J nghl;nlhk;/ v';fs; Kd;dpiyapy; jhd; mUs;uh$; me;j capy; gj;jpuj;jpy; ifbaGj;Jf;fs; nghl;lhh;/ mjd;gpd; eh';fs; rhl;rp ifbaGj;J nghl;nlhk;/ eh';fs; rhl;rp ifbaGj;J nghl;lij mUs;uh$; ghh;j;jhh;/
16. Later, the same witness has deposed as follows :.
////// ehd; btspapy; ,Uf;Fk;nghJ mUs;uh$; capypy; ifbaGj;Jg;nghl ntz;Lk; vd;W vd;id miHj;Jr;brhd;whu;/ MWKfk; vd;gth; mUs;uh$; vd;gtUld; ,Ue;jhh;/ ehd; nghFk;nghJ gj;jpuj;jpy; jl;lr;R bra;J itj;jpUe;jhh;fs;/ gj;jpuk; th';fpaJ gw;wp vdf;F vJt[k; bjupahJ/ ehd; gjpt[ mYtyh; Kd; ifbahg;gk; nghl;nld;/ ehd; xU ifbaGj;J jhd; nghl;nld;/ mJ jtpu ntW ve;j ifbaGj;Jk; nghltpy;iy/ ehd; ifbaGj;J nghl;Ltpl;L btspapy; te;J tpl;nld;/ vdf;F gpd; ahh; ifbaGj;J nghl;lhh;fs; vd;W vdf;F bjupahJ/ //// 16-a. Section 63 of the Indian Succession Act, 1925, requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writings as a Will.
17. Though the attestor, P.W.2 has initially stated that one scribe Thanga Manoharan has written the Will, in the later part of the deposition, he stated that when he went to the Registrar office, the Will is typewritten and kept ready and he had signed before the Registrar and had come out. It is not stated that he had seen the executor/testator signing the document or even the other attestor Arumugam signing the same in his presence. Thus, the Will is not proved, as required by the Act. If the Will is held to be fabricated and not proved in the manner known to law, the plaintiff cannot have any right over the suit property. As stated earlier, the defendant had cancelled the settlement deed after the death of his daughter and son-in-law. It is the consistent case of the defendant that even though the execution of the settlement deed was admitted, the same was not acted upon, as the possession continued with the defendant and he had been collecting the rents from the shops in the suit property. If the title continued with the original owner, namely, the defendant, Arulraj cannot have any right to execute the Will.
18. The suit property was claimed by the plaintiff as per Section 15 of the Hindu Succession Act, 1956. It is stated that after the execution of the settlement deed in favour of Anandhi, she became the absolute owner of the property. On her death, by virtue of Section 15(1)(a) of the Hindu Succession Act, the property automatically devolved on her husband, namely Arulraj. As Arulraj had absolute title, he had executed a Will, though the same is not proved. However, as per Section 15(2)(a) of the Hindu Succession Act, any property inherited by a female Hindu from her father or mother, shall devolve, in the absence of any son or daughter of the deceased, including the children of any pre-deceased son or daughter, not upon the other heirs referred to in Sub-Section (1) in the order specified therein, but upon the heirs of the father. As discussed earlier, even though the defendant had executed the settlement deed, he had not parted with the possession and only he was managing the properties by letting out the tenants. The suit property is only the adjacent vacant land and does not include the rented premises. A reading of the evidence of P.W.1 also goes to show that he was totally ignorant of the suit property about its maintenance, payment of taxes, payment of electricity charges and the particulars of the tenants in occupation. The learned counsel for the appellant/plaintiff contended that if the father is the legal heir, as per Section 15(2)(a) of the Hindu Succession Act, then there was no necessity for executing a revocation deed. However, learned counsel for the respondent/defendant contended that excepting ipse dixit of the plaintiff, there is no other evidence to show that the plaintiff or the said Arulraj was in possession of the suit property. There is no convincing reason given by the plaintiff for not including the shops and had deliberately mentioning only 0.50 cents adjacent to that. It is contended by the learned counsel that it is only to avoid the payment of Court fee, the plaintiff had omitted to claim the shop portion also.
19. From the above quoted evidence of P.W.1, it is evident that he had never dealt with the property at any point of time and excepting a few of the TNEB receipts, rest of the documents are all subsequent to the suit. It is further contended that if only the testator intended to benefit the plaintiff, the correct description of the property would have been given in the Will. As the description of the property itself is not mentioned in the Will, it has to be presumed that the Will is fabricated only for the purpose of the suit. Thus, considering at any angle, the plaintiff cannot get any right over the suit property based on the Will, as the Will itself is fabricated only for the purpose of the suit and the same is also not proved in the manner known to law.
20. The suit property was owned and purchased by the defendant, who had put up the shops in 0.15 cents of the land, he has been in maintenance of the same. The defendant, as the original owner of the suit property, thus is entitled to get back the property as the legal heir of the said Anandhi.
21. In the light of the above discussions, it is concluded that the settlement deed dated 28.03.2002 executed by the defendant in favour of Anandhi was not acted upon, and the Will dated 02.05.2006 brought by the plaintiff has not been proved in the manner known to law, and that, on the demise of Arulraj, the defendant will inherit the property. Based on these conclusions, the questions of law are answered accordingly in favour of the defendant.
22. In view of the above findings, the appeal is dismissed confirming the judgment and decree of the lower appellate court rejecting the suit. No costs. Consequently, connected miscellaneous petition is closed.
26.03.2018
Index : Yes/No
Internet: Yes
gg
To
1. The Principal Distirct Judge,
Tindivanam.
2. The Additional District Munsif,
Tindivanam.
PUSHPA SATHYANARAYANA, J.
gg
Judgement in
S.A.No.80 of 2015
26.03.2018