Madras High Court
Selvarani vs Manoharan on 28 November, 2016
Author: R. Subramanian
Bench: R. Subramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 28.11.2016
CORAM
THE HONOURABLE MR.JUSTICE R. SUBRAMANIAN
A.S.No.585 of 2010
and M.P.No.1 of 2014
1.Selvarani
2.Rajaveni
3.Seperumal ...Appellants
(The first respondent transposed as
third appellant vide order of Court
dt.06.08.2015 made in MP.1/2015).
..Vs..
Manoharan ..Respondent
Prayer: Appeal filed Under Section 96 and Order XLI Rule 1 CPC, to set aside the Judgment and Decree of the Additional District Judge, Pondicherry at Karaikal in O.S.No.17 of 2008 dated 19.01.2010 in so far as it has rejected the claim for partition and after setting aside the same decree the suit as prayed for.
For petitioners : Mr.R.Rangarajan
For Respondent : Mr.G.K.Ilantirain
for M/s.Sai Bharath & ILan
JUDGMENT
The plaintiffs who have partially succeeded in the suit for partition in O.S.No.17 of 2008 on the file of the Additional District Judge, Karaikal are the appellants herein.
2.The defendants are the brothers of the plaintiffs. The first respondent in the appeal namely Seperumal, one of the sons got himself transposed as an appellant in the appeal. According to the plaintiffs, the suit properties originally belonged to one Rasammal, wife of Seperumal. Plaintiffs would contend that though Rasammal executed a Will, bequeathing a partition of property on 19.06.1974 in favour of her daughter-in-law Gandhimathi, the said Will was not acted upon and Rasammal's son Sowrirajan inherited the property on the death of the Rasammal on 02.11.1981. Gandhimathi wife of Sowrirajan died on 08.04.2006. The plaintiffs and the defendants succeeded to the estate of Sowrirajan who died on 25.06.1993. Claiming intestate succession the plaintiffs would seek partition and separate possession of 2/4th share in the property measuring in an extent of 14 ares and 43 centiares .
3.The suit was resisted by the second defendant. The second defendant filed a written statement which was adopted by the first defendant, contending that the Will executed by Rasammal on 19.06.1974 was acted upon and under the said Will, she had bequeathed an extent of 8 ares and 69 centiares to her daughter-in-law Gandhimathi. Pursuant to the said Will, the said Gandhimathi had executed two settlement deeds on 20.5.1993 and 09.08.2001 in favour of the first and second defendants. respectively. Under the settlement deed dated 20.05.1993 Gandhimathi settled an extent of 3 ares and 34 centiares in favour of the first defendant Seperumal and under the settlement dated 09.08.2001, the said Gandhimathi had settled an extent of 4 ares and 41 centiares infavour of the second defendant Manoharan. The said Gandhimathi had also executed a Will on 13.04.2005, bequeathing an extent of 43 kuzhies equivalent to 5 ares and 75 centiares, in favour of the plaintiffs. But the plaintiffs would denounce the said Will also claiming that Gandhimathi did not have title in the suit properties. It is also claimed that another 24 kuzhies of land has also been allotted to the plaintiffs. On the above contentions the defendants sought for dismissal of the suit.
4.On the above pleadings, the learned Additional District Judge, Karaikal framed the following Issues and Additional Issues in the suit:
1. Whether the plaintiffs are entitled to get 2/4th share in the suit property?
2. Whether the suit is bad for non joinder of necessary parties?
3. Whether the court fee paid by the plaintiffs is correct?
4. To what relief the plaintiffs are entitled?
Additional Issues:
1. Whether the will executed by Rasammal in favour of the daughter-in-law namely Gandhimathi, the mother of the plaintiffs and the defendants on 19.06.1974 was not acted upon and it was agreed by the parties that the property would be inherited by one Sowrirajan, the son of Rasammal and the father of the parties?
2. Whether the settlement deeds executed by Gandhimathi in favour of the defendants on 20.05.1993 and on 09.08.2001 are null and void and the same are not binding upon the plaintiffs?
5. On the side of the plaintiffs PW-1 to PW-3 were examined and Exs.A-1 to A-8 were marked. On the side of the defendants DW-1 & DW-2 were examined and Ex.B-1 to Ex.B-13 as well as Ex.X-1 to Ex.X-5 were marked.
6. The learned Additional District Judge decreed the suit in part upholding the will alleged to have been executed by Rasammal dated 19.06.1974, as well as the Will said to have been executed by Gandhimathi on 13.04.2005. However, the learned District Judge found that an extent of 94 centiares equivalent to 6 Kuzhies remained undivided and therefore, plaintiffs are entitled to 2/4th share in the said 94 centiares only. Aggrieved by the said decree, the plaintiffs have filed the above appeal and during the pendancy of the appeal, the first respondent namely Seperumal who was the first defendant in the suit got himself transposed as an appellant. It is rather unfortunate to find that the parties who have chosen to rely upon two different Wills , one dated 19.06.1974, said to have been executed by Rasammal and the other dated 13.04.2005 said to have been executed by Gandhimathi have not even attempted to prove them. A Will is a document which required to be proved strictly in accordance with Section 68 of the Evidence Act. To my surprise, neither of the parties have chosen to examine the attestors to both the Wills. Therefore, both the Wills have not been proved in accordance with law. This crucial aspect has been lost sight of of during the process of trial. Therefore the following points are framed for determination:
1. Whether the Wills dated 19.06.1974 and 13.04.2005 have been proved in accordance with law?
2. To what relief/s are the parties entitled to in the absence of proof of both the Wills?
7.As already pointed out none of the attestors to the Wills have been examined, and therefore, I am constrained to hold that both the Wills have not been proved in accordance with law.
8.Therefore, I have no other but option to hold that Rasammal had died intestate and upon her death on 02.11.1981, the property devolved on her only son Sowrirajan who died on 25.06.1993 leaving behind his wife and children. His wife Gandhimathi also died on 08.04.2006.
9. Therefore, the four persons namely the plaintiffs and defendants herein, are the only surviving legal heirs. Though several documents have been executed by the parties, relying upon the Wills in the absence of proof, all these documents are of no use to the parties. Thus, the plaintiffs as well as the defendants are each entitled to 1/4th share in the deceased Rasammal's property. Since I have already held that Rasammal is presumed to have died intestate, this Court has no option to set aside the judgment and decree of the Trial Court. The suit will stand decreed as prayed for granting 2/4th share to the plaintiffs.
10.In fine, the appeal is allowed and the judgment and decree in O.S.N o.17 of 2008 is set aside. The suit in O.S.17 of 2008 will stand decreed as prayed for granting 2.4th share to the plaintiffs. Considering their relationship the parties will bear their own costs. Consequently the miscellaneous petition is closed.
28.11.2016 KP Note to Registry:-
[1]Appeal allowed and the judgment of the Trial Court is set aside. [2]There will be a preliminary decree declaring the plaintiffs 2/4th share in the suit property. In other aspects the suit will stands dismissed.
To The Additional District Judge Pondicherry at Karaikal.
R.SUBRAMANIAN, J., KP Judgement in A.S.No.585 of 2010 28.11.2016 http://www.judis.nic.in