Madras High Court
A.Govindarajan vs C.Manonmani on 12 December, 2018
Author: B.Pugalendhi
Bench: B.Pugalendhi
S.A(MD)No.193 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 12.12.2018
CORAM
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
S.A.(MD)No.193 of 2011
and
C.M.P.(MD)Nos.12532 and 12533 of 2016
A.Govindarajan : Appellant
Vs.
1.C.Manonmani
2.Thiruchirapalli City Corporation,
Through its Zonal Officer,
Srirengam, Tiruchirapalli. : Respondents
PRAYER: Second Appeal filed under Section 100 C.P.C
against the judgment and decree passed by the learned
II Additional Subordinate Judge, Tiruchirapalli in
A.S.No.61 of 2005, dated 24.09.2010 reversing the
judgment and decree of learned I Additional District
Munsif, Tiruchirapalli made in O.S.No.27 of 1996 dated
23.11.2004.
For Appellant : Mr.D.Kanagasabai
For R1 : Mr.Raguvaran Gopalan
For R2 : No Appearance
*****
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http://www.judis.nic.in
S.A(MD)No.193 of 2011
J U D G M E N T
The unsuccessful plaintiff before the lower appellate Court is the appellant herein. He challenged the judgement and decree of the lower appellate Court, namely, II Additional Sub Court, Tiruchirapalli, made in A.S.No.61 of 2005, in allowing the appeal, thereby dismissing the suit in O.S.No.27 of 1996.
2.It is the case of the appellant/plaintiff that one Narayanasamy Naidu was the original owner of the suit property and other properties and he executed a registered Will dated 14.09.1946 (Ex.A9) in favour of the plaintiff, Govindarajan. As per the recital contained in the Will (Ex.A9), 'B' Schedule property was given to his daughter, Cauvery Ammal as life estate with a restriction of alienation and the vested remainder was given to the plaintiff. After the demise of the said Cauvery Ammal, the plaintiff inherited 'B' schedule item nos.1 to 3 of the properties mentioned in 2/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 the said Will, in the year 1982. The plaintiff enjoyed the suit properties by putting up thatched shed and also planted coconut trees. While so, the 1st defendant, who is the daughter of Cauvery Ammal, encroached into the suit properties and put up thatched shed with cement floor and also paid property tax in her name. The plaintiff came to know about the encroachment made by the 1st defendant when his application seeking transfer of property tax into his name was rejected by the 2nd defendant. Hence the plaintiff approached the trial court for declaration, recovery of possession and mandatory injunction against the 2nd defendant and to transfer the property tax into his name.
3.The 1st defendant, being the contesting defendant, denied the execution of Will by Narayanasamy Naidu and also pleaded that Cauvery Ammal was a deaf and dumb woman and she had no capacity to understand the contents of the Will. At no point of time, the plaintiff enjoyed the suit property and he was never in 3/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 possession and enjoyment over the suit property. To the knowledge of Cauvery Ammal and the plaintiff Govindaraj, the 1st defendant along with her husband had put up a thatched house and also constructed a bathroom and they are in possession and enjoyment of the suit property for more than the statutory period and they also acquired title over the suit property by adverse possession. The 2nd defendant Municipality has assessed house tax in the name of the 1st defendant, taking into consideration of the fact that she is residing in the suit property from the year 1975 onwards. The allegations of the plaintiff that the 1st defendant trespassed into suit property in the year 1993 is false.
4.The plaintiff has produced nine documents and he examined himself as PW-1. On the side of the 1st defendant, seven documents were produced and on her side, three witnesses were examined as DW-1 to DW-3, including herself.
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5.In order to substantiate the case, the plaintiff marked the registered Will dated 14.09.1946 as Ex-A9. Per contra, the 1st defendant claimed title to the suit property through her mother Cauvery Ammal and she also claimed title by adverse possession.
6.Considering the rival submissions and upon analysing the documentary and oral evidences adduced on either side, the trial Court decreed the suit, however, the same was reversed by the lower appellate Court in the appeal filed by the 1st respondent herein, against which, the plaintiff has preferred this second appeal.
7.This Court, by order dated 10.09.2013, admitted this second appeal on the following questions of law:
(A) Whether a person can claim himself to be in adverse possession in the absence of any document to show his possession and enjoyment continuously and uninterruptedly for more than 12 years in the said property?5/19
http://www.judis.nic.in S.A(MD)No.193 of 2011 (B) Whether a married daughter can get any absolute right in the self acquired properties of her father when there is a registered will executed by her father giving her the right of residence in the property till her life time?
(C) Whether the limited estate will get enlarged into an absolute right in the absence of any preexisting right to maintenance in the properties of a father for a married daughter?
(D) Whether a Beneficiary loses his right in a property he got through a Registered Will merely because there was no mutation of record in his name after the demise of the Executor and his daughter who has been give right of residence till her lifetime?
8.The learned Counsel for the appellant/plaintiff even though has raised various grounds, mainly relied upon the registered Will (Ex.A9) dated 14.09.1946, executed by Narayanasamy Naidu in his favour. According 6/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 to the learned Counsel for the appellant, the Will is of the year 1946 and it is more than 30 years old document and therefore, Section 90 of the Indian Evidence Act would come into play. Hence, he need not prove the Will as the same is presumed to be a genuine document and the trial court has rightly decreed the suit. But the lower appellate Court has erroneously dismissed the appeal. However, the learned Counsel for the appellant fairly submitted that before the trial court, no steps were taken to prove the Will (Ex.A9) in the manner known to law, since the learned trial Judge has not framed any issues relating to the genuineness of the Will. Further, the learned trial Judge has not discussed anything about the Will or applicability of Section 90 of the Indian Evidence Act.
9.I have also gone through the judgment of the trial Court, wherein, no issue was framed in respect of the genuineness and execution of the Will. When the 1st defendant has explicitly denied the execution, 7/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 attestation and registration of the Will (Ex.A9), the trial Court should have framed necessary issues in respect of genuineness of the Will (Ex.A9). When the plaintiff claimed title to the suit properties, the trial Court without framing any issue in that aspect and also without deciding the genuineness or execution of the Will, decreeing the suit, in the considered opinion of this Court is not proper and not legally sustainable.
10.The learned Counsel appearing for the 1st respondent submitted that the lower appellate court has rightly held that the plaintiff has not proved the Will (Ex.A9) as per the procedure adumbrated under Sections 68 to 73 of the Indian Evidence Act. He further contented that the plaintiff cannot take shelter under Section 90 of the Indian Evidence Act, as the presumption will not apply to a Will. Therefore, the learned Counsel supported the judgment of the lower appellate Court that the 1st respondent became the 8/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 absolute owner of the suit properties, in view of Section 14 (1) of the Hindu Succession Act, as she is having pre-existing right in the suit properties. During the course of the argument, the learned counsel for the 1st respondent herein also fairly submitted that since the lower appellate Court held that Ex-A9 was not proved by the plaintiff, as per Sections 68 to 73 of the Indian Evidence Act, the appellate Court ought to have remanded the matter to the trial Court for proving the Will.
11.This Court paid it's anxious consideration to the rival submissions made on either side and also perused the materials available on record.
12.The perusal of appellate Court judgment would go to show that the learned appellate Judge has also not framed any issues relating to the said Will. When the appeal suit is a continuation of the suit, the learned appellate Judge is bound to frame relevant issues 9/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 before deciding the appeal. Even though the learned appellate Judge has not framed any issues relating to the Will (Ex.A9), he has held that the plaintiff failed to prove the Will (Ex.A9) as per Sections 68 to 73 of the Indian Evidence Act. The lower appellate Court further held that even though the Will (Ex.A9) is more than 30 years old, it cannot be presumed that the said Will is genuine as per Section 90 of Indian Evidence Act, in view of the judgments of the Hon'ble Supreme Court and this Court.
13.At this juncture, I would like to extract Section 90 of the Evidence Act, which reads as under:
“90.Presumption as to documents thirty years old- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and 10/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 attested by the persons by whom it purports to be executed and attested.
Explanation.-Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81.”
14.A perusal of Section 90 of the Indian Evidence Act, would go to show that if any document is proved to be 30 years old, when it is produced before the Court, the Court may presume that the contents of the document, signature, execution and attestation are true. But, as per the judgment of the Hon'ble Apex Court in the case of Bharpur Singh and others v. Shamsher Singh reported in 2009 (3) SCC 687, and also the judgment of this Court in the case of R.Suburathinam v. T.Govindaraj, reported in 2009 (7) 11/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 MLJ 476, one cannot escape from proving the Will merely by taking shelter under section 90 of the Evidence Act.
15.In the case of Bharpur Singh (supra), the Hon'ble Supreme Court has held as follows:
“19.The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a will have no application. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted.
Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting is alive and subject to the process of the court and capable of giving evidence”.
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16.This Court, in the case of R.Suburathinam (supra) has held as follows:
“56.A bare perusal of it would make the point clear that the defendants cannot place reliance on Section 90 of the Indian Evidence Act and claim that they are absolved from the responsibility from proving the due execution of the Will by the testator as though it is an ancient document. The Hon'ble Apex Court clearly and categorically mandated that Section 90 of the Indian Evidence Act cannot be taken as a shelter by the propounder of the Will, but he has to prove strictly in accordance with Section 63(c) of Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act coupled with Sections 69 and 70 of it, as the case may be”
17.The lower appellate Court followed the above judgments and having held that the plaintiff failed to prove the Will (Ex.A9) in the manner known to law, has erroneously held that the 1st defendant became the absolute owner of the suit property by virtue of Section 14(1) of the Hindu Succession Act, 1956, as she inherited the same from her mother, Cauvery Ammal and 13/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 therefore, the suit property should have been treated as the absolute property of the 1st defendant.
18.At this juncture, it would be useful to refer Section 14(1) of the Hindu Succession Act, 1956, which reads as under:
“14.Property of a female Hindu to be her absolute property – (1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation: In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.” 14/19 http://www.judis.nic.in S.A(MD)No.193 of 2011
19.In the case on hand, the lower appellate Court held that the plaintiff has not proved the Will. Even though the 1st respondent herein/1st defendant has not pleaded in her written statement anything about Section 14(1) of the Hindu Succession Act, this Court is of the view that the legal points can be canvassed at any point of time.
20.In my view, the above said finding of the lower appellate Court is not legally sound, since according to its finding, the Will (Ex.A9) was not proved by the plaintiff and thus, the question of inheritance of the suit property by the 1st defendant through her mother, Cauvery Ammal, does not arise by virtue of Section 14(1) of the Hindu Succession Act, 1956. In the case on hand, under the Will (Ex.A9), life estate was given to the mother of the 1st defendant in respect of the suit property and the vested reminder is given to the plaintiff and therefore, to decide the applicability of Section 14(1) of the Act, first of all, the Will should 15/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 have been proved and then only, the pre-existing right of the 1st defendant under Section 14(1) of the Act would come. The lower appellate Court, when came to the conclusion that the Will (Ex.A9) was not proved, as per the provisions of Sections 68 to 73 of the Indian Evidence Act, ought to have remanded the matter to the trial Court, by giving an opportunity to the plaintiff to prove the Will (Ex.A9) in the manner known to law, by permitting the parties to adduce oral and documentary evidence. Without doing so, allowing the appeal in favour of the 1st defendant, in the opinion of this court, is unsustainable in law and so it is liable to be set aside.
21.In view of the foregoing discussions and as per the decisions cited supra, I am of the considered view that the judgment and decree of the lower appellate court is liable to be set aside and the matter deserves fresh consideration by the trial Court for the purpose of deciding the Will (Ex.A9) in accordance with 16/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 Sections 68 to 73 of the Indian Evidence Act. The trial Court shall frame necessary issue with regard to applicability of Section 14(1) of the Hindu Succession Act, 1956.
22.In the result, this second appeal is allowed and the judgment and decree of the learned II Additional Subordinate Judge, Tiruchirapalli, in A.S.No.61 of 2005, dated 24.09.2010 is hereby set aside and the same is remitted back to the file of the trial Court, namely, I Additional District Munsif, Tiruchirapalli with the following directions:
a) the learned trial Judge is directed to decide the suit in O.S.No.27 of 1996 by framing necessary issues in respect of the Will (Ex.A9) dated 14.09.1946 and the applicability of Section 14(1) of the Hindu Succession Act, 1946, by permitting the parties to lead oral and documentary evidence, if any, in respect of the Will (Ex.A9) and;
b) the learned trial Judge is further directed to dispose of the suit within a 17/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 period of six months from the date of receipt of this order, considering the fact that the suit is of the year 1996 and report the same to this Court.
c) There shall be no orders as to cost.
Consequently, connected miscellaneous petitions are closed.
Index : Yes / No 12.12.2018
Internet : Yes
das/gk
To
1.The II Additional Subordinate Judge, Tiruchirappalli.
2.The I Additional District Munsif, Tiruchirappalli.
3.The Record Keeper / Section Officer, E.R. / V.R. / Criminal Section, Madurai Bench of Madras High Court, Madurai.
18/19 http://www.judis.nic.in S.A(MD)No.193 of 2011 B.PUGALENDHI, J.
gk S.A.(MD)No.193 of 2011 and C.M.P.(MD) No.12532, 12533 of 2016 12.12.2018 19/19 http://www.judis.nic.in