Madras High Court
Balasundaram vs Rukmani Ammal on 25 September, 2015
Author: M.Duraiswamy
Bench: M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.09.2015
CORAM
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
A.S.No.73 of 1990
and
M.P.(MD)Nos.2 and 3 of 2009
and
M.P.(MD)No.1 of 2015
Balasundaram .. Plaintiff/Appellant
Vs.
1.Rukmani Ammal
2.Balamohan
3.Seetharaman
4.Kartheekeyan
5.Susilarani
6.Shyamala Devi
7.Bavani Bai
8.Vasuki
9.Sankaran
10.Pitchammal ... Defendants 1 to 10/Respondents
11.Kannan(Died)
12.K.Krishnaveni
13.Ahila
14.Balasubramanian
15.Vijayalakshmi
16.Krishnaprabha
( Respondents 12 to 16 brought on record
as legal representatives of the deceased
11th respondent vide order of the Court
dated 11.06.2009 made in M.P.(MD)No.1
of 2008)
Prayer: Appeal filed under Section 96 of the Civil Procedure Code against
the judgment and decree made in O.S.No.105 of 1985 on the file of the
Subordinate Court, Tuticorin dated 26.07.1989.
!For Appellant : Mr.S.Meenakshi Sundaram
^For Respondents : Mrs.N.Krishnaveni
for R.12 to R.16
: Mrs.N.Krishnaveni
for Ms.R.Thenmozhi
for R.3 and R.9
: No Appearance
for R.1, R.2, R.4, R.6, R.7, R.11
:JUDGMENT
The above appeal arises against the judgment and decree passed in O.S.NO.105 of 1985 on the file of the Subordinate Court, Tuticorin. The plaintiff is the appellant and the respondents 1 to 10 were the defendants in the suit. The 11th respondent was impleaded by this Court in C.M.P.No.8480 of 1990 and during the pendency of the appeal, the 11th respondent had died and his legal representatives were brought on record as respondents 12 to 16. The plaintiff filed the suit in O.S.No.105 of 1985 for partition.
2.The brief case of the plaintiff is as follows:
According to the plaintiff, the suit properties originally belonged to one Sundarapandia Konar, who executed a Will dated 20.11.1940. The said testator passed away on 25.03.1941 and on his death, the Will came into effect. The said properties were bequeathed in favour of Rajadoss to be enjoyed by him for his life time and after his death, enjoyed by his grand sons. The said Rajadoss had five sons viz., Baliahdoss, Sankaradoss, Rajadoss, Krishnadoss and Swamidoss. As per the Will, the sons of Rajadoss should inherit the vested remainders. The said Rajadoss passed away on 19.02.1981 leaving behind his wife. As per the Will of the testator if there is no male child for any one of his sons, the sons of other four brothers will be equally entitled to the properties. Sankaradoss did not have male child. The plaintiff is the only son of Swamidoss. The defendants 1 to 8 are the legal heirs of Late Sundararajan, who is the only son of Baliah Doss.
The 9th defendant is the only son of Late Krishnadoss.
(ii)The defendants 1 to 8 together are entitled to 1/3rd share in the suit properties. The 9th defendant is entitled to 1/3rd share and the plaintiff is entitled to 1/3rd share. Since Sankaradoss did not have male child, he was not added as party in the suit.
(iii)According to the plaintiff, the suit properties are in enjoyment of Pitchammal, 10th defendant in the suit by permission granted to her. Since the 10th defendant started misusing the property, the present suit has been filed by the plaintiff for partition.
3.The brief case of the defendants 1, 3 and 5 are as follows:
The defendants admitted the claim of the plaintiff and prayed for passing of preliminary decree.
4.The 9th defendant also admitted the case of the plaintiff and prayed for passing of preliminary decree.
5.The brief case of the 10th defendant is as follows:
According to the 10th defendant, the properties dealt with by Sundarapandia Konar are the ancestral properties in which her husband and his brother had a right by birth. Further according to the 10th defendant, her husband, his brothers and Sundarapandi Konar constituted a Hindu joint family which owned extensive properties. The said Sundarapandi Konar was not entitled to make a Will regarding the suit properties. The Will was executed few months prior to the death of Sundarapandia Konar. After the death of Sundarapandia Konar, the brothers divided the properties among themselves and the suit properties and other items were given to the defendant's husband. The averment that the defendant's husband had only a life interest is false. The averment that since the defendant's husband had no male issue, the properties should go to the children of other brothers is also false. She is in possession of the property in her own right. She has also dealt with some items of the properties, for which the plaintiff and the defendants 1 to 9 did not raise any objection. The properties are not covered by any terms of the alleged Will of Sundarapandi Konar. The Will is not true and valid and not binding on the properties. One of the brother Sankaradoss had no male issue. However the said Sankaradoss had already disposed of all his properties given to him from the joint family excepting a house wherein he lives.
(ii)The plaintiff and the defendants 1 to 9 did not question the sale of the property by the said Sankaradoss. The present suit has been filed only to harass the 10th defendant in view of her old age. The plaintiff and the defendants 1 to 9 have no right in the suit properties. In these circumstances, the 10th defendant prayed for dismissal of the suit.
6.Before the trial Court, on the side of the plaintiff, he was examined as P.W.1 and 8 documents Exs.A.1 to A.8 were marked. On the side of the defendants, two witnesses were examined and 9 documents Exs.B.1 to B.9 were marked. The trial Court, after taking into consideration the oral and documentary evidences let in by the parties, dismissed the suit. Aggrieved over the judgment and decree of the trial Court, the plaintiff has filed the above Appeal.
7.Heard Mr.S.Meenakshi Sundaram, learned Counsel appearing for the appellant and Mrs.N.Krishnaveni learned Counsel appearing for the respondents.
8.Mr.S.Meenakshi Sundaram, learned Counsel for the appellant contended that Sundarapandi Konar had no right to execute Ex.A.3-Will dated 20.11.1940. The 10th defendant failed to prove that the suit properties are joint family properties. Further the learned Counsel submitted that since the 10th defendant's husband had admitted the truth and validity of Ex.A.3-Will, the trial Court should have decreed the suit. Further the learned Counsel submitted that Exs.B.3 to B.5 documents cannot take away the rights of the appellant. The learned Counsel also submitted that the testator had every right to dispose of the properties covered under Ex.A.3-Will.
9.Countering the submissions made by the learned Counsel appearing for the appellant, Mrs.N.Krishnaveni, learned Counsel appearing for the respondents contended that the trial Court has rightly dismissed the suit finding that the Will executed by Sundarapandia Konar is not valid. Further the learned Counsel submitted that the properties are rightly found by the trial Court as ancestral properties.
10.In support of her contentions, the learned Counsel appearing for the respondents relied upon the following judgments:
(i) In Janaki Devi Vs. R.vasanthi and Others reported in 2005(1) CTC 11, the Division Bench of this Court held that Sections 69 and 71 of Evidence Act constitute exception to Section 68 of Succession Act. Section 69 of the Evidence Act provides for proving attestation by examining someone who is acquainted with handwriting of atleast one attesting witness and such witness should depose that signature of attesting witness found in the Will is that of that attesting witness whose signature he is familiar with. Section 71 of Evidence Act comes to rescue of party who has taken steps to get attesting witnesses to give evidence but failed or such witness denied or failed to recollect execution of Will. Therefore, the Division Bench held that the Will can thus be proved by other evidence.
(ii) In Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported in 2003(1) CTC 308, wherein the Honourable Supreme Court held that the Will should be proved as per Section 68 of the Indian Evidence Act and that if the Will is not proved as contemplated under Section 68 of the Evidence Act, will result in holding that the execution of the Will was not proved in accordance with law.
(iii) Babu Singh and Others Vs. Ram Sahai Alias Ram Singh reported in (2008) 14 Supreme Court Cases 754. In this judgment, the Honourable Apex Court held that to prove due execution of Will, at least one attesting witness required to be examined.
(iv) In Tamilkodi Vs. NB.Kalaimani 2.Kalaiselvi reported in 2015(4) CTC 771, wherein this Court held that even in the absence of objections raised by other party, the examination of attesting witness is mandatory and the propounder of Will should prove that the witnesses saw testator signing the Will and that they themselves signed the Will in the presence of the testator.
11.On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing on either side, in this first appeal, the following points arise for consideration:
(1) Whether Ex.A.3-Will dated 20.11.1940 is valid, true and genuine? (2) Whether the suit properties are self-acquired properties or the joint family properties?
(3) Whether the plaintiff is entitled to 1/3rd share in the suit properties?
12.In the case on hand, the defendants 1 to 9 supported the case of the plaintiff. The 10th defendant alone contested the suit by filing her written statement. However, the 10th defendant was not examined as a witness before the trial Court. The plaintiff claimed 1/3rd share in the suit properties. It is the case of the plaintiff that Sundarapandi Konar executed Ex.A.3-Will dated 20.11.1940 bequeathing in favour of Rajadoss to be enjoyed by him for his life time and after his death to be enjoyed by his grand sons. The said Rajadoss had five sons viz., Baliahdoss, Sankaradoss, Rajadoss, Krishnadoss and Swamidoss. As per the Will, the sons of Rajadoss should inherit the vested remainders. The said Rajadoss died on 19.02.1981 leaving behind his wife. Further as per the Will, if there is no male child for any one of his sons, the sons of other four brothers will be equally entitled to the properties. Admittedly Sankaradoss did not have male child. The plaintiff is the only son of Swamidoss. The defendants 1 to 8 are the legal heirs of Late Sundararajn who is the only son of Baliah Doss. The 9th defendant is the only son of Late Krishnadoss.
13.According to the 10th defendant, her husband, his brothers and Sundarapandia Konar constituted a Hindu joint family which owned extensive properties, therefore, the said Sundarapandi Konar was not entitled to make a will regarding the suit properties. Further the 10th defendant contended that the will is not genuine, valid and not binding on her. By the partition deed dated 26.02.1915, Sundarapandi Konar and his brother partitioned the ancestral properties and in the said partition, the second item of the properties was allotted in favour of Sankarapandi Konar. After the execution of Ex.A.3 will, the testator Sankarapandi Konar had died within four or five months. Though the property purchased under Ex.B.1 sale deed stood in the name of Sankarapandi Konar, no evidence was let in by the plaintiff to establish that the said property is a separate property. Though the 10th defendant had disputed Ex.A.3-Will, the plaintiff has not proved the Will in accordance with Section 68 of the Indian Evidence Act. The judgments relied upon by the learned Counsel appearing for the respondents squarely apply to the facts and circumstances of the present case.
14.As per the judgments relied upon by the learned Counsel appearing for the respondents, the Honourable Apex Court as well this Court held that a Will should be proved as per the provisions of Section 68 of the Indian Evidence Act by examining the attestors or in the absence of attestors in accordance with the provisions of Section 69 of the Evidence Act. In the absence of any evidence let in by the plaintiff with regard to the proof of Ex.A.3-Will, the trial Court has rightly came to the conclusion that the Will was not proved and that the same is not a valid Will.
15.Even the property purchased by Sundarapandi Konar under Ex.B.1 sale deed was construed only as joint family properties, the properties and all the properties were dealt with only as joint family properties. In the absence of any evidence to prove that Sundarapandi Konar purchased the suit properties out of his own funds, the trial Court has rightly held that the properties are joint family properties and not self-acquired properties.
16.The plaintiff also failed to prove the source for the purchase of the suit properties by Sankarapandi Konar and the plaintiff also has failed to establish their exclusive possession over the suit properties, but on the contrary by producing Exs.B.6, B.7, B.8 documents, the 10th defendant was able to establish that she and her husband were and are in possession of the suit properties. Since the 10th defendant's husband is entitled to the first item of the suit properties, after the death of her husband, the 10th defendant is entitled to the same. Since the plaintiff failed to establish the Will in accordance with law, the trial Court has rightly found that the Will is not valid document and the suit for partition filed by the plaintiff was rightly dismissed by the trial Court .
17.The appellant has filed a petition in M.P.(MD)No.1 of 2015 in the above Appeal under Order 41 Rule 27 C.P.C. to receive additional documents viz., the Town Survey Field Register Extract and the suit Register copy in O.S.No.13 of 1949, on the file of the Subordinate Court, Tuticorin. In the affidavit filed in support of the petition, the appellant has stated that he had applied for the certified copy of the documents and he is filing the same before this Court. Further he has stated that in respect of due diligence he was not able to trace out the documents earlier. Hence, the documents were not produced before the trial Court.
18.When the appellant has filed the suit for partition based on Ex.A.3- Will, the burden is on him to establish the truth and genuineness of the will in accordance with law. As plaintiff, he should have produced all the documents before the trial Court. The trial Court, after taking into consideration the available oral and documentary evidences, rightly dismissed the suit. The reasoning given by the appellant that inspite of due diligence he was not able to trace out the documents earlier cannot be accepted at this stage. The appeal is pending since 1990 and after a lapse of 25 years, the present application has been filed by the appellant seeking permission of this Court to produce additional documents. The appellant/plaintiff should have produced all the documents before the trial Court and established his case at the time of trial. In these circumstances, the reasoning given by the appellant cannot be accepted. The petition is liable to be dismissed.
19.The appellant has filed M.P.(MD)No.3 of 2009 to implead the legal heirs of the deceased 10th defendant who had died in the year 1990. Though the 10th defendant had died in the year 1990, the appellant has filed the present application under Order 1 Rule 10 C.P.C. after a lapse of 19 years to implead the lenial male descendants of Rajadoss viz., the appellant and all other brothers, sons of Late Rajadoss. The application filed by the appellant was opposed by the respondents 13 to 15 stating that the proposed respondents are not necessary parties.
20.Since the suit filed by the plaintiff was dismissed by the trial Court and which is also being confirmed by this Court in this judgment, I find no reason to implead the proposed respondents in the appeal. In these circumstances, the petition is liable to be dismissed.
21.The respondents 12 to 16 have also filed a petition in M.P.(MD)NO.2 of 2009 under Order 41 Rule 27 C.P.C. to produce additional documents viz., the suit Register Extract in O.S.No.3 of 1870, judgment and decree passed in O.S.NO.146 of 1987. The respondents 12 to 16 have not explained the reasons for not producing the documents before the trial Court. When the appeal was pending since 1990, the present application has been filed in the year 2009 ie. after a lapse of 19 years. The parties cannot produce the documents in a piece meal manner and the said petition cannot be entertained at this stage. Further even in the absence of these documents, the appeal can be decided effectively based on the available oral and documentary evidences. In these circumstances, the petition filed by the respondents 12 to 16 in M.P.(MD)No.2 of 2009 is liable to be dismissed.
22.In these circumstances I do not find any ground to interfere with the judgment and decree of the trial Court. The First Appeal is liable to be dismissed. Accordingly the same is dismissed. However, there shall be no order as to costs. Consequently, the connected Miscellaneous Petitions in M.P.(MD)Nos.2 and 3 of 2009 and M.P.(MD)No.1 of 2015 are also dismissed.
To The Subordinate Court, Tuticorin.
M.DURAISWAMY,J.
.