Madras High Court
Selvi vs Gomathy Ammal on 5 August, 2008
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/08/2008 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL.No.561 of 2008 and M.P.No.1 of 2008 1.Selvi 2.Manickam 3.Darania ... Appellants/ Defendants Vs. Gomathy Ammal ... Respondent/ plaintiff Second appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 07.12.2007 passed in A.S.No.29 of 2007 by the Subordinate Judge, Ambasamudram, confirming the judgment and decree dated 25.01.2007 passed in O.S.No.412 of 2004 by the Principal District Munsif, Ambasamudram. !For appellants ... Mr.R.S.Ramanathan ^For respondent ... Mr.J.Parekhkumar :JUDGMENT
The concurrent judgments passed in Original Suit No.412 of 2004 by the Principal District Munsif Court, Ambasamudram and in Appeal Suit No.29 of 2007 by th Subordinate Court, Ambasamudram are now under challenge.
2.The respondent herein as plaintiff has instituted Original Suit No.412 of 2004 on the file of the trial Court, for the reliefs of partition and mesne profits, wherein the present appellants have been shown as defendants.
3.It is averred in the plaint that the suit properties are originally belonged to the father of the plaintiff by name Tharaniya Pillai @ Pugalum Perumal Pillai and he purchased the same under two registered sale deeds dated 06.10.1949 and 26.04.1956. The said Tharaniya Pillai @ Pugalum Perumal Pillai has passed away leaving behind him, his wife viz., Nachiammal, the plaintiff and husband of the first defendant by name Ponniah, Mookan and Pechiammal. The said Mookan and Pechiammal have passed away without leaving any legal heirs. During the life time of the father of the plaintiff, he has constructed a house in the suit properties and he paid Kisth, etc. to the Government. He has not executed any will during his life time. After his demise, the plaintiff and husband of the first defendant are having equal share in the suit properties. The husband of the first defendant viz., Ponniah has passed away leaving behind him, the present defendants as his legal heirs. Both the plaintiff and defendants are enjoying the suit properties jointly. The plaintiff has demanded the defendants to pay her share of income, but the defendants have failed to pay the same. Now the defendants are making arrangements to change the suit properties in their names with the assistance of Vikramasingapuram Village Administrative Officer. The plaintiff has issued a legal notice dated 20.05.2004 and the defendants have issued a reply notice containing false allegations. It is false to say that the plaintiff has been married prior to 27 years after giving sufficient 'Seervarisai'. Under the said circumstances, the present suit has been instituted for the reliefs indicated above.
4.It is averred in the written statement that the suit properties are the self acquired properties of the deceased Tharaniya Pillai @ Pugalum Perumal Pillai. It is false to say that he passed away intestate. It is also equally false to say that the plaintiff has received income from the suit properties. The said Tharaniya Pillai @ Pugalum Perumal Pillai has passed away on 01.04.1983 and with regard to suit properties, he has executed a will dated 18.12.1982, wherein it has been directed that his wife has to enjoy the suit properties till her life time and after her demise, all the suit properties should go to the husband of the first defendant and the husband of the first defendant has passed away on 02.07.1996. Since the husband of the first defendant has passed away, the defendants are his legal heirs and they are entitled to get the suit properties absolutely. The plaintiff is not entitled to get the reliefs sought for in the plaint. There is no merit in the suit and the same deserves dismissal.
5.On the basis of the claims and counter claims, the trial Court has framed necessary issues and after contemplating both the oral and documentary evidence, has decreed the suit as prayed for. Against the judgment and decree passed by the trial Court, the defendants as appellants have preferred Appeal Suit No.29 of 2007 on the file of the first appellate Court. The first appellate Court, after reappraising the evidence available on record, has dismissed the appeal, whereby and whereunder confirmed the judgment and decree passed by the trial Court. Against the concurrent judgments, the present second appeal has been filed.
6.As agreed by the learned counsel appearing for both sides, the present second appeal is disposed of on merits at the stage of admission.
7.On the side of the appellants/defendants, the following substantial questions of law have been raised for consideration;
"a)Whether the Courts below are right in rejecting the will Ex.B13 as not proved?
b)Whether the claim for partition by the respondent is not barred by time?"
8.The crux of the case of the plaintiff is that all the suit properties are separate properties of the father of the plaintiff by name Tharaniya Pillai @ Pugalum Perumal Pillai and he has purchased the same under two registered sale deeds dated 06.10.1949 and 26.04.1956, and he died intestate and the mother of the plaintiff by name Nachiammal has also passed away and the plaintiff and husband of the first defendant by name Ponniah are the legal heirs of the said Tharaniya Pillai @ Pugalum Perumal Pillai and under the said circumstances, the plaintiff is entitled to get half share in the suit properties and since the said Ponniah has passed away leaving behind him, the present defendants as his legal heirs, they are entitled to get the remaining half share.
9.On the side of the defendants, it has been sparingly contended that all the suit properties are the separate properties of the deceased Tharaniya Pillai @ Pugalum Perumal Pillai and he passed away on 01.04.1983 and before his demise, he has executed a will dated 18.12.1982 wherein it has been specifically stated that his wife should enjoy all the suit properties till her life time and after her demise, all the suit properties should go to the husband of the first defendant by name Ponniah and since the husband of the first defendant by name Ponniah has passed away, the defendants have become absolute owners of the suit properties and therefore, the plaintiff is not entitled to get the reliefs sought for in the plaint. As adverted to earlier, the trial Court has decreed the suit as prayed for and the first appellate Court has confirmed the jdugment and decree passed by the trial Court.
10.The learned counsel appearing for the appellants/defendants has strenuously contended that all the suit properties are the separate properties of Tharaniya Pillai @ Pugalum Perumal Pillai and he purchased the same under two registered sale deeds dated 06.10.1949 and 26.04.1956, and during his life, he has executed a will dated 18.12.1982, wherein it has been specifically stated that his wife should enjoy the suit properties till her life time and after her demise, his son by name Ponniah will get absolute interest and title over the suit properties and the executant viz., Tharaniya Pillai @ Pugalum Perumal Pillai has passed away on 01.04.1983 and therefore, the said will has come into existence and the wife of the executant has also passed away and after her demise, the husband of the first defendant has got absolute interest and title over the suit properties and the husband of the first defendant has also passed away and after his demise, the present defendants are having absolute right and title over the suit properties and in order to prove due execution and attestation, one of the attestors of the will by name Muthu has been examined as DW2 and the Courts below without considering his evidence, have erroneously negatived the contentions urged on the side of the defendants and therefore, the concurrent judgments passed by the Courts below are liable to be interfered with and the present suit is liable to be dismissed.
11.Per contra, the learned counsel appearing for the respondent/plaintiff has also equally contended that all the suit properties are the separate properties of the father of the plaintiff by name Tharaniya Pillai @ Pugalum Perumal Pillai and he has purchased the same under two registered sale deeds dated 06.10.1949 and 26.04.1956 and he died intestate leaving behind him, the mother of the plaintiff and brother of the plaintiff by name Ponniah and both mother of the plaintiff and her brother Ponniah have passed away and the defendants are the legal heirs of the deceased Ponniah and, both the plaintiff and defendants are having equal share in the suit properties and further in the alleged will dated 18.12.1982, it is stated that the properties of Tharaniya Pillai @ Pugalum Perumal Pillai are situate on the boundaries of the suit properties and except the suit properties the deceased Tharaniya Pillai @ Pugalum Perumal Pillai has had no other property and since erroneous four boundaries have been given to the suit properties mentioned in the will dated 18.12.1982, the same is nothing but false and the alleged attestor viz., DW2 has categorically admitted in his evidence that he has not known the contents of the will and the Courts below after considering the infirmities found in the evidence of DW2 as well as erroneous four boundaries given in the will dated 18.12.1982, have rightly negatived the contentions urged on the side of the defendants and further the first defendant has been examined as DW1 and she has clearly stated in her evidence that her father-in-law viz., deceased Tharaniya Pillai @ Pugalum Perumal Pillai has used to sign with his initial, but in the will dated 18.12.1982, initial is not found in the signatures of the deceased Tharaniya Pillai @ Pugalum Perumal Pillai and on that score also, the alleged will is nothing but false and therefore, the argument advanced by the learned counsel appearing for the appellants/ defendants is not having merit and the same is liable to be rejected.
12.It is an admitted fact that all the suit properties are the separate properties of the father of the plaintiff viz., deceased Tharaniya Pillai @ Pugalum Perumal Pillai and he purchased the same under two registered sale deeds dated 06.10.1949 and 26.04.1956 and the registration copy of the same, have been marked as Exs.A1 & A2. The specific contention of the defendants is that the original owner of the suit properties viz., deceased Tharaniya Pillai @ Pugalum Perumal Pillai has executed the will dated 18.12.1982 and the same has been marked as Ex.B13. For deciding the dispute that exists betwixt the parties, Exs.A1 & A2 and Ex.B13 are the relevant documents.
13.The sum and substance of the case of the plaintiff is that her father viz., deceased Tharaniya Pillai @ Pugalum Perumal Pillai has passed away intestate and the contention urged on the side of the defendants is that he executed Ex.B13. In fact, this Court has closely perused Ex.B13, wherein it has been candidly stated that all the properties mentioned in Ex.B13 are the separate properties of the executant viz., Tharaniya Pillai @ Pugalum Perumal Pillai and he directed his wife to enjoy all the suit properties till her life time and after her demise, all the suit properties should go to his son by name Ponniah, husband of the first defendant.
14.The Courts below have concurrently come to the conclusion that Ex.B13 has not been proved by the defendants and further it has been held that the same is false. The plaintiff has been examined as PW1. She has stated in her evidence that her father has not executed any will in favour of anybody. The first defendant has been examined as DW1 and she has stated in her evidence that her father-in-law has executed Ex.B13. One of the attestors of Ex.B13, by name Muthu has been examined as DW2. During the course of chief-examination, he has categorically stated that on 18.12.1982 Tharaniya Pillai and one Veluthevar have come to his house and Tharaniya Pillai has told him that he is going to execute a will in respect of the suit properties and he asked him to come along with him and accordingly all of them have gone to the office of Advocate Esakkipandi and the said Advocate has directed his clerk to type the will as per the instruction of Tharaniya Pillai and accordingly the same has been typed and Tharaniya Pillai has put his signatures in three places and the same has been seen by him and other attesting witness by name Veluthevar and subsequently the said Veluthevar has put his signature and the same has been seen by him and Tharaniya Pillai, and thereafter he has put his signature and the same has been seen by Tharaniya Pillai and Veluthevar. During the course of cross-examination, he has stated that he has not known the contents of the will, but, subsequently he has stated that the said will has been executed in favour of the wife of Tharaniya Pillai @ Pugalum Perumal Pillai and she has been directed to enjoy the properties till her life time and subsequently his son should get the same absolutely.
15.The learned counsel appearing for the respondent/plaintiff has based his argument mainly on the ground that since DW2 has categorically stated that he has not known the contents of the will and since erroneous four boundaries have been given in the will, the same is nothing but concoction. As stated earlier, during the course of cross-examination, DW2 has stated that he has not known the contents of the will, but subsequently he has clarified in categorical terms that the said will has been executed in favour of the wife of Tharaniya Pillai @ Pugalum Perumal Pillai and directed her to enjoy the properties till her life time and after her demise, the properties covered under the will should go to his son by name Ponniah. Therefore, from the evidence of DW2, the defendants have completely proved the due execution as well as attestation.
16.At this juncture, it would be apropos to look into Section 3 of the Transfer of Property Act, 1882 and the same reads as follows;
"...... "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;"
17.The said provision can be vivisected as follows;
a)There must be two or more attesting witnesses to an instrument.
b)Each attesting witnesses should have seen the signature of the executant or his mark to the instrument.
c)Attesting witness can receive personal acknowledgement of the signature of the executant or his mark, or of the signature of such other person.
d)It shall not be necessary that more than one of such attesting witness shall have been present at the time of the executant put his signature or mark.
e)No particular form of attestation shall be necessary.
18.It is an avowed principle of law that proof of execution of document required by law to be attested should be proved as per the provision of Section 68 of the Evidence Act and the same reads as follows;
"If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied."
19.From the close reading of the said provision, it is made clear that if a document is required by law to be attested, for the purpose of proving the same, one attesting witness should be examined.
20.In AIR 1954 Supreme Court 316 (Kishore Vs. Ganesh) the Honourable Apex Court has held that where an attesting witness stated that the executant put her thumb impression in his presence, it is sufficient proof of valid attestation. It must be shown that the attestator signed the document in the presence of the executant.
21.In AIR 1969 Supreme Court Cases 1147 (Abdul Jabbar Vs. Venkata Sastri) the Honourable Apex Court has held that the Act of attestation must be done animo attestandi i.e., with the intention to attest.
22.Therefore, from the close reading of the provision of Section 3 of the Transfer of Property Act, 1882 and Section 68 of the Evidence Act as well as the decisions referred to above, it is made clear that where an attesting witness stated in his evidence that he has seen the signature of executant, itself is a sufficient proof and valid attestation. To put it in a nutshell, the role of attesting witness to a document required by law to be attested is that he should see signature of executant and executant must see his signature and he need not prove the contents of document.
23.In the instant case, in Ex.B13 two attesting witnesses have put their signatures. One of the attesting witness by name Muthu has been examined as DW2. In fact, this Court has closely perused the entire evidence adduced by him and he has categorically stated that Ex.B13 has been executed by the deceased viz., Tharaniya Pillai @ Pugalum Perumal Pillai, wherein he has directed his wife to enjoy the suit properties covered under Ex.B13 till her life time without power of alienation and after her demise, the properties covered under Ex.B13 should absolutely go to his son by name Ponniah and further he has stated that he and other attesting witness have seen the signature of the executant viz., Tharaniya Pillai @ Pugalum Perumal Pillai and Tharaniya Pillai @ Pugalum Perumal Pillai has seen his signature as well as the signature of other attesting witness. Therefore, it is quite clear that the due execution as well as attestation of Ex.B13 have been clearly proved by the evidence of DW2. As stated earlier, at one stage DW2 has stated that he has not known the contents of Ex.B13. But, subsequently he has clarified to the effect that Ex.B13 has been executed in favour of the wife of Tharaniya Pillai @ Pugalum Perumal Pillai and she has been directed to enjoy the properties mentioned in Ex.B13 till her life time and after her demise, all the properties covered under Ex.B13 should absolutely go to his son by name Ponniah. Simply because, at one stage DW2 has stated that he has not known the contents of Ex.B13, the Court cannot come to a conclusion that Ex.B13 has not been executed by the executant viz., Tharaniya Pillai @ Pugalum Perumal Pillai.
24.The next contention urged by the learned counsel appearing for the respondent/plaintiff is that in Ex.B13 some erroneous four boundaries have been given to the effect that the properties mentioned as four boundaries belonging to the executant viz., Tharaniya Pillai @ Pugalum Perumal Pillai.
25.At this juncture, it would be more useful to look into four boundaries given in Exs.A1 & A2. Exs.A1 & A2 are sale deeds which stand in the name of the executant viz., Tharaniya Pillai @ Pugalum Perumal Pillai. In fact, the properties of vendors have been shown as four boundaries to the properties covered under Exs.A1 & A2. Admittedly, the executant viz., Tharaniya Pillai @ Pugalum Perumal Pillai has had no right, title and interest over the properties mentioned as four boundaries in Exs.A1 & A2. It is seen from the evidence of DW2 that advocate by name Esakkipandi has directed his clerk to type Ex.B13 as per the instruction given by the executant and probably the advocate clerk has typed the four boundaries as found in Exs.A1 & A2 and only under the said circumstances, the mistakes found in Ex.B13 have occurred and on that score also, the Court cannot come to conclusion that the executant has not executed Ex.B13. Therefore, all the contentions raised on the side of the respondent/plaintiff cannot be accepted.
26.The learned counsel appearing for the appellants/defendants has also contended the circumstances under which Ex.B13 has come into existence. It is an admitted fact that the plaintiff has given in marriage prior to 27 years. Ex.B13 has been written at the age of 75 of the executant. The ultimate beneficiary of Ex.B13 is the only son of the executant. Since the plaintiff has been given in marriage prior to 27 years and since the ultimate beneficiary is the only son of the executant, the Court can safely come to a conclusion that the executant has executed Ex.B13. Further it is seen from the records that the father of the plaintiff viz., executant of Ex.B13 has passed away on 01.04.1983 and the present suit has been instituted in the year 2004. Therefore, after a lapse of twenty one years, the present suit has been instituted. If really, the father of the plaintiff viz., executant of Ex.B13, has not executed the same, definitely, the plaintiff would not have remained silent for a period of twenty one years. Therefore, the circumstances under which Ex.B13 has come into existence are also favourable to the defendants.
27.It has already been pointed out that the learned counsel appearing for the respondent/plaintiff has also advanced his argument to the effect that DW1 has stated in his evidence that her father-in-law has used to put his signature with initial, but in Ex.B13 the initial of the executant is not found and therefore, Ex.B13 has come into existence in a suspicious circumstances.
28.In order to analyse the above limb of argument advanced by the learned counsel appearing for the respondent/plaintiff, it would be more useful to look into the evidence of DW2. A suggestion has been put to DW2 that by utilishing the signature of the executant viz., Tharaniya Pillai @ Pugalum Perumal Pillai, Ex.B13 has been concocted with the assistance of DW2 and the other attesting witness of Ex.B13. Therefore, it is quite clear that the signature found in Ex.B13 has been candidly admitted on the side of the plaintiff and the last limb of argument arugment advanced by the learned counsel appearing for the respondent/plaintiff is really sans merit.
29.It has already been enunciated that original owner of the suit properties viz., Tharaniya Pillai @ Pugalum Perumal Pillai has executed Ex.B13, wherein it has been specifically stated that his wife should enjoy the properties covered under Ex.B13 till her demise without power of alienation and after her demise, the entire properties covered under Ex.B13 should absolutely go to his only son by name Ponniah and the said Ponniah has passed away leaving behind him, the defendants as his legal heirs and further Ex.B13 has come into existence and the same is also valid. Since Ex.B13 is a valid document and since it has come into existence, it is pellucid that the defendants are the absolute owners of the suit properties. Since the defendants are the absolute owners of the suit properties, the plaintiff is not entitled to get the reliefs sought for in the plaint.
30.In fact, the Courts below have created mountains out of molehills by way of relying upon the flimsy evidence adduced by DW2 to the effect that he has not known the contents of Ex.B13 as well as erroneous four boundaries given in Ex.B13. The Courts below have virtually failed to consider the entire evidence adduced by DW2 with regard to due execution and attestation of Ex.B13. The approach of the courts below is totally against the evidence available on record and under the said circumstances, the concurrent judgments passed by the Courts below are liable to be set aside. It has already been stated that the defendants are absolute owners of the suit properties and therefore, the plaintiff is not entitled to get the reliefs sought for in the plaint and in view of the discussion made earlier, it is very clear that the arguments advanced by the learned counsel appearing for the appellants/defendants are really having subsisting force and whereas the arguments advanced by the learned counsel appearing for the respondent/plaintiff are sans merit.
31.In fine, this second appeal is allowed without costs at the stage of admission. The judgments and decrees passed in Original Suit No.412 of 2004 by the Principal District Munsif Court, Ambasamudram and in Appeal Suit No.29 of 2007 by the Subordinate Court, Ambasamudram are set aside. The Original Suit No.412 of 2004 is dismissed without costs. Consequently connected miscellaneous petition is closed.
gcg To
1.The Subordinate Judge, Ambasamudram.
2.The Principal District Munsif, Ambasamudram.