G.Gopal vs G.Nagarathinam on 20 December, 2017

[Cites 8, Cited by 0]

Madras High Court

G.Gopal vs G.Nagarathinam on 20 December, 2017

Bench: Pushpa Sathyanarayana

        

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.12.2017
CORAM
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
  T.O.S.No.32 of 1999 
and C.S.No.772 of 2005

T.O.S.No.32 of 1999

G.Gopal							..  	Plaintiff

Versus

1. G.Nagarathinam
2. G.Chandrayya	
    (D2 impleaded as per order in
     A.No.762 of 2000, dated 17.08.2000)				
3. G.Jamuna
4. C.Bhaskar
5. C.Sadana
    (Defendants 3 to 5 impleaded as 
     per order dated 15.07.2009 in
     A.No.4575 of 2008 in T.O.S.No.32 of 1999)   ..Defendants


C.S.No.772 of 2005

C.Baskar							..	Plaintiff
				-vs-

1. Gopal
2. Chandrayya
3. Nagarathinam						..	Defendants

PRAYER in T.O.S.No.32 of 1999: Petition filed under Sections 222 and 276 of the Indian Succession Act for Grant of Letters of Administration to grant Probate of Will dated 25.12.1984 along with the marginal note dated 02.10.1991 annexed to the petition.

PRAYER in C.S.No.772 of 2005: Plaint filed under Order VII Rule 1 C.P.C. Read with Order IV Rule 1 of Original Side Rules praying for (i) Declaration of the title of the plaintiff and the co-owner to the suit property as per settlement deed dated 12.08.1977 (ii) consequentially directing the defendants to handover the vacant possession of the suit property to the plaintiff (iii) for the future profits at Rs.1,000/- from the date of suit till the date of delivery of possession and (iv) to award costs.
			
		T.O.S.No.32 of 1999
		For Plaintiff			: Mr.R.Thiagarajan
		For Defendants 3 to 5   : Ms.S.Rajeni Ramadass
     		C.S.No.772 of 2005
		For Plaintiff			: Ms.S.Rajeni Ramadass
		For Defendant-1		: Mr.R.Thiagarajan

J U D G M E N T

T.O.S.No.32 of 1999

The above Testamentary Original Suit has been filed for grant of Probate of Will dated 25.12.1984 along with the marginal note dated 02.10.1981 annexed to the petition.

2. It would be useful to note the relationship of the parties before proceeding further discussion on the genuineness of the Will:-

(i) One G.Ramakrishna Chetty had three daughters and two sons. Jamuna, Hemavathy, Nagarathinam are the daughters and Chandrayya and Gopal are the two sons. Originally, the Original Petition No.689 of 1993 was filed by Gopal, one of the sons of Ramakrishna Chetty making only Nagarathinam and Chandrayya, as defendants 1 and 2. Hemavathy is said to have been pre-deceased her father. Jamuna, the other daughter, who is said to have been mentally unstable has two children, namely, Baskaran and Sadana. As Nagarathinam had filed caveat, the Original Petition was converted into T.O.S.No.32 of 1999. In the said T.O.S, a memorandum of compromise was filed by all the parties and in view of the same, on 05.08.2002, a decree was passed in terms of the compromise memo and the probate was issued. Thereafter, Baskaran, the grandson of Ramakrishna Chetty filed O.A.No.4122 of 2005 to revoke the grant of Probate dated 05.08.2002 of the Will dated 25.12.1984 in T.O.S.No.32 of1999. As the grandfather Ramakrishna Chetty had executed a settlement deed dated 13.08.1977 in favour of the said Baskar and his sister, they ought to have been made as a party to the probate proceedings. The said application was allowed on the ground that the compromise was recorded without the presence of the first defendant Nagarathinam, when she is the identifying witness in the alleged Will, besides being the daughter of the testator. The order of revocation further held that the said Baskar and Sadana have caveatable interest and without adding them as parties, a compromise entered into by the plaintiff was not sustainable. Accordingly, the probate issued by this Court on 05.08.2002 was set aside on the ground that the same suffered from procedural defects in order dated 17.02.2006. O.S.A.No.219 of 2006 filed against the order dated 17.09.2006 in Application No.4122 of 2005 was also confirmed by the order dated 17.02.2006. The said order was challenged in Civil Appeal No.6067 of 2008 before the Hon'ble Supreme Court. The Hon'ble Apex Court also confirmed the order of the Hon'ble Single Judge as well as the Division Bench stating that the respondent had caveatable interest in the estate of the deceased. Thus, after the revocation of the probate, the daughter of the testator, namely Jamuna and her children Bhaskar and Sadana are added as respondents 3 to 5 in the T.O.S.

(ii). In the plaint, it was averred by the plaintiff that the testator had bequeathed the immovable property, namely, front upstair portion of premises bearing Door No.26, Solaiamman Koil Street, Madras-7 in favour of the first son, namely, Chandrayya. The upstair portion consisting of three rooms and verandah with open staircase by the side of the premises bearing No.39, Minor Trustpuram, Kodambakkam, Madras-24 had been bequeathed to his son Gopal, who is the plaintiff. It is further stated that even during the life time of the testator on 02.10.1991, he had deleted the last four lines in the first para and signed against the deleted portion of the Will. Since both the attesting witnesses are no more, one Seetha Raman was examined for the purpose of identifying the signature of the testator. It is further stated that the testator also had cancelled the settlement deed dated 12.08.1977 written in favour of D4 and D5. Hence, the plaintiff had prayed for the issuance of Probate of the Will dated 25.12.1984.

(iii). The first defendant Nagarathinam had filed her written statement opposing the grant of Probate. She is the daughter of the testator, who had stated that the testator never had any intention of executing any Will, as her father had executed settlement deeds even in the year 1971 and 1973 settling the ground floor of the premises at Door No.39, Minor Trustpuram, Kodambakkam in favour of her. Subsequently, the first floor was raised, which was given to the first defendant. Therefore, it is not possible to bequeath only the first floor in favour of the plaintiff. The first defendant also had mentioned about the suit filed by the father against the tenants for eviction and recovery of arrears of rent, which recognize the right of the first defendant as the owner of the premises. This defendant has been shown as the identifying witness in the Will. However, it is denied by the defendant that she was never at any point of time called by the father to accompany him to the Registrar Office to identify his signature. It is further stated that during the relevant point of time, the first defendant was an unmarried young girl and the father would not have taken her to the Registrar Office to sign as an identifying witness. As the first defendant sensed fraud and foul play, prayed for dismissal of the suit.

(iv). The third, fourth and fifth defendants have filed their written statement contending that the alleged Will dated 25.12.1984 itself is a rank forgery and not a genuine document executed in accordance with Sections 63 and 71 of the Indian Succession Act. It is also stated that the signature of the testator in page 2 of the Will varies from that of his other signatures. The cancellation deed dated 20.10.1991 of the Will is not in consonance with Section 71 of the Indian Succession Act. It is contended that any alteration, interlineation, or obliteration can be given effect to, only if the signature of the Testator and of the attesting witnesses is made in the margin or some other part of the Will opposite or near to such alteration, interlineation, or obliteration. Thus stating, the defendants prayed for dismissal of the suit for grant of probate.

C.S.No.772 of 2005:

The suit is one for declaration of title of plaintiff to the suit property as per the settlement deed dated 12.08.1977 and for recovery of vacant possession.

3. (i) The plaintiff states that his maternal grandfather one G.Ramakrishna Chetty was the absolute owner of the suit schedule property. The plaintiff is the grandson of his daughter G.Jamuna. The first and second defendants are the sons of the said Ramakrishna Chetty and the third defendant is his daughter. Another daughter, namely, Hemavathy, predeceased him. During the life time of the said Ramakrishna Chetty, he had executed a registered settlement deed dated 12.08.1977 in favour of the plaintiff and his sister Sadhana, who were minors at that time, represented by Mother and guardian. The said settlement deed was also registered as document No.897 of 1977. The settlement is with respect to 1156 sq.ft excepting the front upstair portion consisting of two rooms and a small hall in front with easementary rights as described in the schedule. Pursuant to the settlement deed, the settlees were also put in possession of the property. The settlor, namely, the grandfather was residing in the front upstair portion of the suit property and the remaining portion were let out for rent.

(ii). It is stated further that after the death of the grandfather on 02.05.1993, the first defendant occupied the front upstair portion of the suit property and continues to live there. The tenants had vacated the suit property and the said portions are vacant as on date of the suit. In the month of March 2005, it was brought to the knowledge of the plaintiff that the defendants were trying to alienate the suit property and claiming right over the suit property under a registered Will of the plaintiff's grandfather. However, on verification of the encumbrance certificate for the suit property, there was no other transaction excepting the settlement deed till March 2005. In the meanwhile, T.O.S.No.32 of 1999 was filed for probate of the Will. The plaintiff was not aware of the probate proceedings, as no notice was served on him or his sister or even his mother though they have caveatable interest in the said properties. The certified copy of the Will obtained by the plaintiff specifically mentioned about the settlement deed executed in favour of the plaintiff on 12.08.1977. In the meanwhile, T.O.S.No.32 of 1999 was compromised and an order of probate was issued. Immediately, the plaintiff had filed O.P.No.2746 of 2005 for revocation of probate granted. The second defendant, who is one of the identifying witness had specifically denied her attestation as witness in the alleged execution of the Will. Therefore, based on the Will, which is forged, the plaintiff has obtained the probate on the guise of the memorandum of compromise. However, the challenge to the same by the plaintiff was allowed and the probate order was revoked. As the property which has been settled in favour of the plaintiff has been clandestinely dealt with by the defendants, the above suit for declaration came to be filed by the plaintiff.

(iii). The first defendant-Gopal had filed his written statement stating that his father had owned two properties one situate at Door No.26, Solaiamman Koil Street, Madras-7 and the other bearing door No.39, Minor Trustpuram, Kodambakkam, Chennai 600 024. The defendant also admitted that his father executed a deed of settlement dated 12.08.1977 in favour of the plaintiff and his sister. However, it is stated that it was cancelled on 02.10.1991, as the plaintiff wanted to outrage the modesty of this defendant's sister. Since the plaintiff wanted to commit such an atrocious act, the grandfather thought it fit to cancel the settlement deed and endorse it on the Will on 02.10.1991. It is stated that the said endorsement was witnessed by Seetha, who is the wife of the second defendant. The defendant had further stated that the plaintiff's mother left her parental home early in life and fell out of the family. However, taking pity of the financial condition of the plaintiff's mother, the grandfather had executed the settlement deed in their favour. However, the subsequent conduct of the plaintiff had driven the grandfather to take the extreme step of cancelling the settlement deed executed in favour of the plaintiff and his sister. The defendant also denied that the plaintiff's father was alive and his mother was normal and not mentally unstable as alleged in the plaint. As the settlement deed based on which the plaintiff making his claim is impeached in the Will till such time the probate proceedings come to an end, the suit cannot be tried. The first defendant also had made a counter claim as per the Will dated 25.12.1984 stating that the property bearing No.39, Minor Trustpuram, 3rd Cross Street, Choolaimedu, Chennai 600 094 had been bequeathed in favour of this defendant. However, the plaintiff and his family are in occupation of the same without any right or title. Therefore, this defendant claimed damages for use and occupation of the premises. However, the said counter claim is only subject to the result of the T.O.S. In the event, the probate is granted holding that the settlement deed is cancelled, only then, the first defendant will be entitled to this counter claim.

(iv). The second defendant, who is the brother of the first defendant had filed his written statement contending that the plaintiff has not come to the Court with clean hands and that the plaintiff has colluded with the first defendant. As the plaintiff is only concerned with the upstair portion, which is the subject matter of the Will, he is not concerned with other portion of the building for the purpose of the suit. This defendant is in occupation of the ground floor of the suit property for the required statutory period. Hence, claim title by adverse possession. Therefore, prayed for dismissal of the suit.

(v). The plaintiff also filed the reply statement to the counter claim made by the first defendant contending that the property in occupation of the plaintiff belongs to the maternal grandfather and he has right to stay in the same along with his mother till such time the Will dated 25.12.1984 is probated. Therefore, it is contended that the question of paying rent or damages or mesne profits does not arise. Hence, prayed for dismissal of the counter claim made by the defendants.

4. The following issues in C.S.No.772 of 2005 are framed for determination.

	i.	Whether the plaintiff is entitled to declaration as prayed 			for?
	ii.	Whether the first defendant is entitled to mesne profits, 			if so, to what extent?
	iii.	Whether the settlement deed dated 12.08.1977 is a true 			and valid document?
	iv.	Whether the settlement deed conveys title tot he said 			plaintiff and if so, to what extent?

	v.	Whether the respective parties are entitled to recovery 			of possession?
	vi.	Whether the first defendant is entitled to damages if so, 			to what extent?

5. The following issues in T.O.S.No.32 of 1999 in C.S.No.772 of 2005 are framed for determination.

i. Whether the Will alleged to have been executed by one Mr.G.Ramakrishna Chetty dated 25.12.1994 at Madras is true, genuine and valid?

ii. Whether the plaintiff is entitled to the probate as asked for?

6. For the sake of convenience, the issue No.1 in T.O.S is taken first for consideration.

(a) The Will marked as Ex.P2 is a typewritten document. It starts as 'This is the last Will and Testament of G.Ramakrishna Chetty, S/o.G.Parthasarathi Chetty followed by the date 25.12.1984. The first para refers to the bequest in favour of the testators' eldest son Chandrayya (2nd defendant), which was earlier settled by a registered deed dated 25.07.1976 in favour of his sister. The sister Hemavathi i.e. daughter of the testator died on 28.11.79 due to cancer and the property reverted to the Testator, which was now bequeathed in favour of the second defendant. The property is the front upstair portion of premises in No.26, Solaiamman Koil Street, Madras-7. The very same para refers to the rest of the portion in the said premises being settled in favour of plaintiff and his sister Sadana by settlement deed dated 12.08.1977.

(b) The second para of the Will refers to upstair portion consisting of 3 rooms of 8' x 8' dimension with an open verandah 8' x 8' and an open staircase by the side of premises No.39 (Old No.63) of Minor Trustpuram, Kodambakkam, Madras-24 which is bequeathed in favour of G.Gopal as a beneficiary under the Will. The Will specifically mentions that the upstair portion was constructed in December 1973 and hence not covered by the two settlement deeds.

(d) The last para revokes the previous registered Will dated 25.07.1980 executed by the Testator. The Will has on it the signature of Ramakrishna Chetty and the signature of two witnesses viz. M.J.Raman below whose name is C.K.Nayar with their addresses. On the next page is the rubber stamp "identified by" below which is the signature of Mrs.Nalini Nayar, W/o.Mr.C.K.Nayar and below the same is the name and address of G.Ramarathnam, D/o.G.Ramakrishna Chetty. Indian Standard Institute, CIT Campus, Adyar, Madras-20. The document also bears an endorsement of registration made by the Sub Registrar, Purasawalkam.

(e) The testator died on 02.05.1993. The petition for probate was filed on 27.08.1993 in O.P.No.689 of 1993. As G.Nagarathinam filed caveat, the Original Petition was converted into T.O.S.No.32 of 1999. On 13.02.1999, the said Nagarathinam filed written statement and objections. However, the caveat and objections were withdrawn by her on 02.07.2002 by making an endorsement on the bundle. In the meanwhile Chandrayya, was impleaded as second defendant and Jamuna, Bhaskar and Sadhana were impleaded as defendants 3 to 5. On 05.08.2002, a Joint Memo of Compromise was signed by plaintiff and the second defendant. As Nagarathinam, the first defendant had withdrawn her objections, she had not signed the Memo of Compromise, Thus recording the said compromise, a Judgment came to be passed on 05.08.2002 and subsequently on 04.10.2002.

(f) While so, the defendants 3 to 5 filed an application No.4122 of 2005 for revocation of probate granted on 05.08.2002. After contest, this Court, by order dated 17.02.2006, revoked the grant of probate. Being aggrieved by the same, O.S.A.No.219 of 2009 was filed before this Court as an intra-Court appeal. The Division Bench also confirmed the order dated 17.02.2006. Challenging the same, C.A.No.6067 of 2008 was filed before the Hon'ble Supreme Court. In the meanwhile, the plaintiff had filed C.S.No.772 of 2005 for recovery of possession and damages with respect to the suit property. Therefore, the Hon'ble Supreme Court had directed the T.O.S.No.32 of 1999 and the suit in C.S.No.772 of 2005 to be tried jointly and disposed of.

7. According to the learned counsel for the plaintiff, the marginal note dated 02.10.1991 on the Will had taken away the benefit conferred under the settlement dated 12.08.1977 by revoking the same. It is stated that the testator has seen in his own eyes that his grandson D3 who was only 18 years, attempted to molest his aunt Nagarathinam which is a heinous crime. Enraged by the same, the testator had revoked the settlement in favour D3 which finds a mention in para 1 of the Will.

8. Admittedly, the Will is a registered one and there are two witnesses to the same. Mr.R.T.Thiagarajan, learned counsel for the plaintiff in T.O.S.No.32 of 1999 contended that the Court has to necessarily consider, if there had been a valid execution, attestation and registration of the testamentary disposition and whether the Will reflects the true volition and sound disposing state of mind of the testator. The Court has to necessarily find out whether the Will is surrounded by any suspicious or fraudulent or vitiating circumstances and whether the Will is vitiated by undue influence, fraud or coercion. Learned Counsel further contended that C.Baskar, who had been examined as P.W.2, has not chosen to let in any evidence with regard to undue influence, fraud or coercion nor placed any documents to substantiate the plea of vitiating circumstances under which the Will dated 25.12.1984 came to be executed.

9. Learned Counsel has also invited the attention of this Court to "Section 71 of the Indian Succession Act", which reads as follows:

"Effect of obliteration, interlineation or alteration in unprivileged Will.No obliteration, interlineation or other alteration made in any unprivileged Will after the execution thereof shall have any effect, except so far as the words or meaning of the Will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the Will: Provided that the Will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the Will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the Will."

10. It is alleged that the testator had himself sent his grand son misbehaving with his aunt for which, there is no retribution in life and hence, testator had made the marginal note. It is contended that when the testator had dealt with the other properties under two settlement deed one in favour of Nagarathinam and another in favour of his grand son and daughter, it should be presumed that the Will has been executed in favour of his son. The Subsequent alteration made in the Will has also been duly authenticated by the testator. It is also argued that even if the validity of the marginal note is negatived due to technical reason, the Will of the testator would remain. Hence, he prayed for grant of probate.

11. Under Section 63 of the Indian Succession Act, the Will, in order to be valued, should contain the signature or mark of the testator and attested by two witnesses who have signed or received acknowledgment from the testator about his having signed the Will.

12. Admittedly in the case on hand, the attesting witnesses are no more. It is stated that D.Seetharaman, who is known to the deceased and who knew the signature of the testator G.Ramkrishna Chetty has sworn to an affidavit identifying the signature of the deceased in the Last Will and Testament dated 24.12.1984. When the attestors are no more, it is wholly impractical to expect any evidence regarding the attestors having signed or received the acknowledgement of the signature of the testator.

13. The first defendant in T.O.S.No.32 of 1999 had filed her written statement denying the existence of any Will executed by father. In fact, she has narrated various circumstances, which would show that her father had no intention at all to execute any Will. There had been litigations initiated by the testator against various tenants. It is stated by the second defendant-Nagarathinam that the testator had projected only her as the sole owner of the property. The defendant himself had stated that the signature found in the Will on each page differs from each other. In fact, the second defendant-Nagarathinam was shown as an identifying witness to the Will, as found on the second page. On the alleged date, it is stated that the said Nagarathinam was an young girl and cases were conducted on her behalf only by her father and she had not accompanied her father to the Registrar Office and put her signature as witness. However, at the time of the compromise, the written statement was withdrawn and an endorsement was also made to that effect. But, later the same was marked as Ex.C.1.

14. The Will is also tainted with suspicious circumstances in view of the variations among signatures of the testator and its marginal note marked as Ex.P3 and Ex.P4. The marginal note is also not attested by any witnesses. In fact, the second defendant, Chandrayya, also had denied the execution of the Will. In such circumstances, it has to be seen as to whether the plaintiff had discharged his burden of giving proper and cogent explanation in getting over the above mentioned suspicious circumstances.

15. The plaintiff had chosen to examine himself as P.W.1 and one D. Seetha Raman as P.W.2 and his sister Nagarathinam as P.W.3 on his side. The plaintiff in the cross examination has admitted that "the signature of the testator as found in Ex.P2 1st page is not tallying with his signature in the 2nd page. The testator's signature found in Ex.P2 varies with the signature in Ex.P3 slightly, which may be due to his age" Similarly, P.W.2, D.Seetha Raman, who is familiar with the signature of the testator was examined and he has stated as follows:

" I was not present at the time of execution of Will dated 25.12.1984 Ex.P2 executed by the testator Ramakrishna Chetty. One Raman and C.K.Nayar were present at the time of execution of the Will. Whether I have seen that they two have signed the Will as attesting witnesses. I deny the suggestion that I am falsely deposing before this Court that I have seen the witnesses have signed in the Ex.P.2.

All the signatures are the signature of the Ramakrishna Chetty among them though the signature found in 2nd page of Ex.P2 and last page of Ex.P3 differs with the other signatures."

When the witness-P.W2 was confronted with the question namely "Whether the signature found in Ex.P2 1st page signed in the margin and signature of Ramakrishna Chetty Ex.P3 last page similar or differ from each other?", the answer is "They differ slightly".

16. So far as the evidence of P.W-3 who was summoned to Court as a subpoena witness has stated as follows:

"There is a difference in the signature of my father found in 1st page of the Will and 2nd page of the Will. I have signed as a 2nd identifying witness in the registrar office in Ex.P2 Will. Originally, I have filed written statement in this case that is Ex.C1 the signature found in that written statement is mine, subsequently I have withdrawn the said written statement and made necessary endorsement dated 02.07.2002 before the Hon'ble Court in O.P/T.O.S.No.32 of 1999, the said endorsement is Ex.C2. I have signed in the endorsement.

Q. Why you have withdrawn your written statement filed in this proceedings?

A. Because of my personal interest.

It is correct to state that I have mentioned in my written statement Ex.C1 the signature found in the Will is not the signatures of my father. It is also correct to state that I have mentioned in my written statement that I have not gone to registrar office to register the Will. It is also correct to state that I have stated in my written statement that my father has not executed the said Will dated 25.12.1984. It is correct to state that I have also mentioned in my written statement that there is no cordial relation between my father and the plaintiff Gopal during the life time of my father and the plaintiff has filed several suit against my father while he was alive. It is correct to state that I have not stated in my written statement. Ex.C1 that Baskar has misbehaved with me during the life time of my father. Witness adds: since it is a shameful act I have not mentioned in the written statement. The portion of cancellation in respect of the settlement deed mentioned in the Will was known to me after the death of my father."

17. A careful perusal of the above evidence by the plaintiff shows that there are variation between the signatures found on the first and second page of the Will and also the signature found along with the marginal note-Ex.P3, which had been categorically admitted by P.Ws.1 to 3. Further P.W-2, who deposed in the chief examination stated that he was acquainted with the signatures of testator, attesting witness and identifying witness and had miserably failed to substantiate his case that how he was familiar with the signature of testaor, attesting witnesses and identifying witnesses. Hence, the testimony of P.W.2 is not very reliable. It is also relevant to note that the conduct of P.W.3, who originally filed caveat and raised an objection through the written statement, which is marked as Ex.C1. Thereafter, she withdrew the same and entered into a compromise. The said compromise was later revoked by this Court at the instance of D3 to D5 in T.O.S.No.32 of 1999. Though the said written statement in Ex.C1 was withdrawn vide endorsement by Ex.C2, the contents of the same is found to be highly contradictory and mutually destructive with that of the evidence of P.W.3. Further, the explanation tendered for withdrawal of the written statement is also not acceptable. In view of the conduct of P.W.3 who has been employed in the Indian Standard Institute, the whole evidence deserves to be eschewed.

18. While construing the language of the Will, the Court is entitled to put itself in the testators armchair and it is also bound to determine the other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship etc. The consideration of above would aid the Court in arriving at a right construction of the Will and to ascertain the meaning of its language.

19. This Court is aware that the testamentary Court is a Court of conscience and not a Court of suspicion. The law also does not prescribe the standard format which every testator should comply with when he or she writes a Will. All that the law requires is that the Will has been executed when the testator or testatrix is in sound and disposing state of mind. The corrections in the Will on a subsequent date and differing signatures found on the Will leads to suspicion. The documentary evidence in this case including Ex.C1 and Ex.C2 would go to show that the Will is not genuine. There is no reason why the third defendant had to file a caveat opposing the Will, later agreed for a compromise. Admittedly, the alleged heinous act by the fourth defendant in the suit does not find a mention in the written statement. It has also not been explained on the part of the plaintiff that even assuming that there was a misconduct on the part of the grand son why the settlement deed standing in the name of the grand daughter is revoked by the testator. In absence of any sustainable explanation for removing the said suspicious circumstances, the Will cannot be held to be true.

20. It is argued by the learned counsel for the plaintiff in T.O.S. that the object of the probate proceedings is not to render the testamentary document ineffective but to make it effective and to render the terms of the Will in Operational. But in the present Will though claims to have been executed as per the requirements of the law, these suspicious circumstances, surrounding the same, have not been addressed by the plaintiff. This Court is conscious of the fact that the testator is not available to state as to whether the document was his last Will or whether the attestor signed it after receiving the acknowledgment from him. The suspicion has been raised by the persons, who are the brother and sister of the propounder of the Will. In fact, even during 1993, he seems to have filed a R.C.O.P. The plaintiff could have filed the documents to compare the signatures of the testator, but having failed to do so, this Court is of the view that the Will is not proved in accordance with law.

21. Question Nos.1,3 and 4 in C.S.No.772 of 2005:

(i) The suit is filed for a declaration declaring that the plaintiff is the co-owner of the suit property with consequential relief of recovery of possession of the suit property and future profits from the date of the suit till the date of recovery of possession.

(ii). The suit is laid by the plaintiff only on the strength of the registered settlement deed dated 12.08.1977, which is marked as Ex.A.1. The said settlement deed is executed by the plaintiff's grandfather Ramakrishna Chetty, who had settled the property in favour of the plaintiff and his sister Sadhana, who were minors at the relevant point of time. Hence, they were represented by the mother and natural guardian Jamuna.

(iii) It is the case of the plaintiff that after execution of the above mentioned settlement deed, the plaintiff and his family were residing at his grandfather's place at Minor Trust Puram and the property settled by their father was let out to tenants for rent and the said rents were collected by the settlor and given to the family of the plaintiff. After the death of the settlor, the first defendant-Gopal collected the rents from tenants and was handing over the same to the plaintiff till the tenants vacated the suit property in January 2005. Later, the first defendant's made a claim or right over the suit property based on the alleged Will dated 25.12.1984. Only later, the plaintiff learnt that the probate in favour of the first defendant was granted in a proceedings in T.O.S.No.32 of 1999. Thereafter, the plaintiff after acquiring the certified copies of the above mentioned Will in the probate proceedings, came to know that the averments in the Will relating to the above mentioned settlement deed dated 12.08.1977 was mentioned as cancelled on 02.10.1991. It is also found that the said Will was fabricated and forged one in view of the variance in the signature of the testator found at each page of the Will. Immediately, the plaintiff took steps to revoke the order of probate and apprehending alienation of the suit property without the knowledge of the plaintiff by the first defendant based on the probate order.

22. The said suit was contested by the defendants 1 and 2 by filing their written statement.

23. The crux of the above mentioned written statement is that the settlement deed executed by Ramakrishna Chetty in favour of the plaintiff and his sister was later cancelled due to the alleged misconduct of the plaintiff by endorsement dated 02.10.1991 made on the above mentioned registered settlement deed. Further, there has been a mention about the cancellation of registered settlement deed in the Will dated 25.12.1984. Hence, in view of the said cancellation of deed, it is contended by the learned counsel for the respondents that the plaintiff shall not make any claim or right over the suit property.

24. It is important to note that the execution of the settlement deed is accepted by both the contesting parties. It is the cancellation which is now in question.

25. Before going into the question as to whether the plaintiff is entitled to a declaration as prayed for, based on the settlement deed dated 12.08.1977, it is necessary to look into the contents of the settlement deed.

26. From the perusal of the recitals of the settlement deed, it is clear that the (i) settlement deed was executed by Ramakrishna Chetty out of pure love and affection for his grand daughter and grandson.

(ii) the purpose of execution of settlement deed is for the maintenance and to meet out the educational expenses of the settlees.

(iii) Pursuant to the settlement deed, the settlor-Ramakrishna Chetty has placed the settlees (i.e) the plaintiff and his sister in possession of the suit property and

(iv) under the settlement deed dated 12.08.1977, the plaintiff and his sister shall hold use and enjoy the suit property in equal shares with absolute rights and ownership.

27. It is important to note that the above mentioned settlement deed is not attached with any conditions and the same appears to be unconditional. The settlor with his sound and conscious mind having settled the ownership and possession of the property in favour of his grand son (i.e) the plaintiff herein and his grand daughter has no right or whatsoever to cancel the same unilaterally by endorsement dated 02.10.1991 and resettle the property. The law relating to the unilateral cancellation of settlement deed is well settled by this Court in the case of D.V.Loganathan -vs- Sub Registrar and another reported in 2014 3 CTC Page 113, wherein, in para 6, it has been held as follows:-

" In fact, the registration of cancellation of the settlement deed is against the public policy as it was not open to the Sub-Registrar to register the cancellation of the Deed, when the Settlement Deed is unconditional and irrevocable. If at all the party who has executed the document is aggrieved by the Settlement Deed, he could have very well approached the Civil Court to set it aside, but certainly could not unilaterally cancel it, by getting the Deed of Cancellation registered with the Sub-Registrar. The Cancellation Deed and its registration, therefore, being without jurisdiction, is liable to be set aside. In fact in the above unreported judgment dated 1.3.2012 made in W.P.No.17983 of 2011 (cited supra), the learned Single of this Court has held as follows:

"10. On consideration, I find that this writ petition deserves to succeed, as per Section 156 of Transfer of Property Act, except for the condition stipulated therein, the Gift deed is irrevocable. It is not disputed that the non of the condition entitling revoking of Gift Deed exists in this case, as the Gift Deed was irrevocable and unconditional. It was not open to respondent no.2 to register the cancellation deed, being opposed to the public policy. The impugned order of registration, therefore, cannot be sustained in law, in view of the decision of the Hon'ble Full Bench of this Court, and decision of the Hon'ble Kerala High Court inLatif Estate Line India Limited vs. Hadeeja Ammal"

For the reasons stated above, the registration of impugned Deed of Cancellation therefore, cannot be sustained in law being against public policy.

28. Similarly, in B.K.Rangachari -vs- L.V.Mohan reported in (2014) 3 CTC 465, wherein in para 10, it has been held as follows:-

10. It is further seen that mere possession for any length of time would not lead to adverse possession. The duration or length of possession is not a factor for deciding adverse possession. In fact in the judgment referred above in K.Balakrishnan V. K.Kamalam and others, 2004(1) CTC 146, the Hon'ble Supreme Court has also held that apart from non-delivery of possession and non-exercising of any rights over the ownership of the property the fact that the donee has failed to make mutation in the records would not make the gift deed invalid. This Court feels that the said Judgment of the Supreme Court applies to the facts on hand as well. For the reason stated above, this Court finds that no intereference is called for. Accordingly, the appeal is dismissed. Consequently, the C.M.P. Is closed. No costs."

29. In the present case, the settlement deed Ex.P-4 in favour of the plaintiff, later came to be cancelled, by virtue of the endorsement dated 02.10.1991 under Ex.P-5. As discussed in the above mentioned precedents, which are squarely applicable to the facts of the present case, once the settlement deed is executed by the settlor to the settlees, and if the settlor is aggrieved by any reason, he could have very well approached the Civil Court to set aside the same. But, certainly, he could not have unilaterally cancelled the settlement deed by making an endorsement. The cancellation endorsement is legally unsustainable and not valid in the eye of law. Thus, the settlement deed even on the date of execution was given effect to and the plaintiff had obtained absolute right of ownership under the above mentioned settlement deed.

30. Ms.S.Rajeni Ramadass, learned Counsel for the the plaintiff in C.S.No.772 of 2005, contended that in para 2 of the settlement deed, it has been clearly stipulated as follows:-

"The Settlor hath in further pursuance of the Deed of Settlement placed the Settlees in possession of the property hereby settled with immediate effect".

In view of the above, it is contended that the plaintiff had become one of the co-owners of the suit property.

31. Learned Counsel has relied on the decision of the Hon'ble Supreme Court in the case of K.Balakrishnan Vs.K.Kamalam [2004(1) CTC 145 SC], wherein, it is held that the "settlement deed would not be invalidated on the ground that the possession was not handed over to the Donee". Reliance was also placed on the decision of this Court in the case of Kuppuswami Mudali -vs- Mahalingam 1997 (1) CTC 256, wherein, it is held that "the delivery of the possession is not necessary and Section 123 of the Transfer of Property Act does not mandate the necessity of delivery of possession". Therefore, the contention of the first defendant that the settlement deed has been cancelled by the settlor by making an endorsement in the backside of the settlement deed dis-entitling the plaintiff of his right, has to be rejected.

32. Learned Counsel for the second defendant-Chandrayya, contended that even as admitted by the plaintiff the front upstair portion, which is subject matter of the Will has been retained by the grandfather, the second defendant is in possession of the ground floor of the suit property and his possession is open, adverse and uninterrupted against all the other parties. The case of the second defendant is that signature in the Will and the settlement deed are one and the same and the settlement deed has not acted upon till date and no steps have been taken by the plaintiff in that regard and false back to the case of the first defendant.

33. The settlement is neither affected by the cancellation deed dated 02.10.1981 nor by mentioning the said cancellation endorsement in the Will dated 25.12.1984, which has already been held to be invalid. Thus, it is held that the plaintiff in C.S.No.772 of 2005 is entitled to declaration of his title as co-owner based on the above mentioned registered settlement deed dated 12.08.1977.

34. As far as the relief of possession sought for by the plaintiff in C.S.No.772 of 2005 with respect to the property at No.26, Solaiamman Koil Street, Madras-7, the same is in possession of the first defendant as admitted in his counter claim. In view of the fact that the settlement deed is held to be true and valid, the plaintiff is entitled to the prayer for declaration of his title based on the settlement deed and also for the relief of recovery of possession of the same.

35. Issue Nos. 2,5 and 6 in C.S.No.772 of 2005.

The first defendant in C.S.No.772 of 2005 had filed a counter claim seeking relief of possession, damages, mesne profits for the property situate at No.39, Minor Trust Puram, only on the strength of the Will dated 25.12.1984 wherein his father late Ramakrishna Chetty had bequeathed the front upstair portion of the above mentioned property in his favour. However, in the foregoing paragraphs for the reasons mentioned therein, it is held that the Will dated 25.12.1984 is not valid and the same is not proved in accordance with law. The relief sought for by the first defendant for possession, damages, mesne profits for the property situate in Door No.39, Minor Trust Puram, based on the Will dated 25.12.1984, cannot be granted.

36. Issue No.6 in C.S.No.772 of 2005:

The first defendant-Gopal has made a counter claim of Rs.1,80,000/-at the rate of Rs.5,000/- per month for use and occupation and also claimed damages to the tune of Rs.2 lakhs with respect to the maintenance of the property at Door No.26, Solaiamman Kovil Street, Madras-7. In the absence of any evidence to substantiate payment of statutory dues for the above mentioned property and also the maintenance, the said prayer also cannot be acceded to and the counter claim of the first respondent is accordingly rejected.

37. In the light of the above reasoning, the suit in C.S.No.772 of 2005 is decreed as prayed for and the counter claim made by the defendants in C.S.No.772 of 2005 and T.O.S.No.32 of 1999 are dismissed. No costs.

20.12.2017 Index: Yes/No Internet: Yes/No srn LIST OF WITNESSES EXAMINED ON THE SIDE OF THE PLAINTIFF P.W.1 G.Gopal P.W.2 - D.Seetharaman P.W.3 - Nagarathinam LIST OF DOCUMENTS MARKED ON THE SIDE OF THE PLAINTIFF Sl.No. Exhibits Date Description of documents 1 P-1 02.05.1993 The original death certificate 2 P-2 25.12.1984 The Original Will 3 P-3 02.10.1991 The previous Will 4 P-4 12.08.1977 The Original Settlement Deed 5 p-5 24.07.1970 The original settlement deed LIST OF WITNESSES EXAMINED ON THE SIDE OF THE DEFENDANTS D.W.1 - G.Chandrayya D.W.2 - C.Bhaskar LIST OF DOCUMENTS MARKED ON THE SIDE OF THE PLAINTIFF Sl.No. Exhibits Date Description of documents 1 D-1 12.08.1977 The xerox copy of settlement deed 2 D-2 11.03.2005 The xerox copy of encumbrance certificate 3 D-3 02.03.2005 The original encumbrance certificate 4 D-4 18.12.1999 The receipt issued by K2, Kodambakkam Police Station PUSHPA SATHYANARAYANA.J srn T.O.S.No.32 of 1999 and C.S.No.772 of 2005 20.12.2017

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