Madras High Court
Deba Prasad Roy vs Dr.Debashish Roy on 19 December, 2023
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
C.S.NO.296 OF 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.12.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.S.NO.296 OF 2019
AND
A.NO.3405 OF 2019 IN C.S.NO.296 OF 2019
AND
A.NO.4905 OF 2023 IN O.P.NO.99 OF 2011
Deba Prasad Roy .. Plaintiff
Versus
Dr.Debashish Roy .. Defendant
PRAYER: Plaint filed under Order IV Rule 1 of the Original Side Rules read
with Order VII Rule 1 of Civil Procedure Code praying for the judgment and
decree against the defendants as follows:
(a)To pass a preliminary decree that the plaintiff is entitled to
one half share in respect to the suit schedule mentioned property;
(b)To appoint an Advocate Commissioner and direct division of
the property by metes and bounds by passing a final decree;
(c)To divide the rental income derived from the suit property into
two shares and allot one share to the plaintiff from the date of management
i.e., 10.08.2012 till the date of plaint as per the statement enclosed amount to
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C.S.NO.296 OF 2019
Rs.45,45,000/- and further direct the defendant to remit the plaintiff's half
share of the present rent of Rs.1,50,000/- per month being collected by the
defendant from the date of plaint till the date of delivery of possession of the
plaintiff's share to the plaintiff;
(d)To pay cost of the Suit.
For Plaintiff : Mr.P.Giridharan
Mr.H.Siddarth
For Defendant : Mr.C.T.Mohan
JUDGMENT
The Suit has been filed for a preliminary decree that the plaintiff is entitled to one half share in respect to the Suit schedule mentioned property; to appoint an Advocate Commissioner and direct division of the property by metes and bounds by passing a final decree; and to divide the rental income derived from the suit property into two shares and allot one share to the plaintiff from the date of management i.e., 10.08.2012 till the date of plaint as per the statement enclosed amount to Rs.45,45,000/- and further direct the defendant to remit the plaintiff's half share of the present rent of Rs.1,50,000/- per month being collected by the defendant from the date of plaint till the date of delivery of possession of the plaintiff's share to 2/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 the plaintiff.
2.The plaintiff and the defendant are brothers. It is the case of the plaintiff that the suit schedule property was originally belonged to the parents of the plaintiff and defendant. The plaintiff's father Late D.N.Roy had executed a Will dated 17.08.1987 which was registered as Document No.63 of 1987 in the Office of the Sub Registrar, T.Nagar, Chennai, bequeathing the superstructure of the suit schedule property equally in favour of the plaintiff and the defendant. Similarly, her mother Late Parula Bala Roy also executed a Will dated 17.08.1987, which was registered as Document No.64 of 1987 in the Office of the Sub Registrar, T.Nagar, Chennai, bequeathing the land situated in Thirumalai Pillai Road, T.Nagar, Chennai, measuring 2 Grounds and 2227 sq.ft equally in favour of the plaintiff and the defendant. The plaintiff's father died on 31.10.1994 and his mother died on 08.04.2007 leaving behind them, the plaintiff, defendant and two daughters as their legal heirs.
3.After the demise of the parents of the parties, the plaintiff filed Original Petitions in O.P.Nos.99 of 2011 and 100 of 2011 for grant of Letters 3/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 of Administration in respect of the Will dated 17.08.1987 executed by his father and the Will dated 17.08.1987 executed by his mother. The sisters of the plaintiff were arrayed as party respondents and also filed their consent affidavits for grant of Letters of Administration in favour of the plaintiff. This Court has granted Letters of Administration in favour of the plaintiff by order dated 10.08.2012 and the Certificate of Letters of Administration was also issued in favour of the plaintiff on 04.12.2012 by this Court.
4.Subsequently, the defendant filed an application in A.No.3524 of 2013 in O.P.No.99 of 2011 and application in A.No.3525 of 2013 in O.P.No.100 of 2011 to revoke the Letters of Administration granted in favour of the plaintiff. However, those applications were dismissed by this Court on 03.01.2014. Thus, the grant of Letters of Administration in favour of the plaintiff has reached finality.
5.Thereafter, the plaintiff filed the present Suit for partition. At this stage, the defendant once again filed an application in A.No.4905 of 2023 in O.P.No.99 of 2011 seeking to revoke the Letters of Administration granted 4/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 in favour of the plaintiff on the sole ground that her mother has left an unregistered Will bequeathing the land in favour of the defendant and the reason for filing such a belated application was to the effect that the said unregistered Will was traced only when the defendant cleaning his house in April 2020. Hence, the present Suit has been resisted on that ground.
6.Since an application has been filed to revoke the Letters of Administration granted in favour of the plaintiff earlier, based on the unregistered Will, when the evidence was half way through before the Master and the matter has came before this Court, this Court taking note of the nature of the issues in the suit and the application, has permitted the parties to adduce the evidence of D.W.1 in the suit and it is also made clear that the same should be treated as common evidence for both the application and the suit. In such way, D.W.2 and D.W.3 were examined before this Court.
7.In the suit, it is the stand of the defendant in his defense that as far as the vacant land is concerned, his mother has executed an unregistered Will dated 05.03.2006. Hence, according to the defendant, he is entitled to 5/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 the entire property bequeathed under the said unregistered Will.
8.Based on the pleadings of both sides in the suit, the following issues were framed by this Court on 26.02.2021:
“i.Whether the plaintiff is entitled for relief of partition as prayed for?
ii.To what other relief?”
9.On the side of the plaintiff, the plaintiff has been examined as P.W.1 and Exs-P.1 to P.13 were marked. On the side of the defendant, three witnesses have been examined as D.W.1 to D.W.3 and Exs-D.1 and D2 were marked.
10.The learned counsel for plaintiff would submit that the registered Will left by the parents of the plaintiff has been proved before this Court and Letters of Administration has also been granted in favour of the plaintiff as early as on 10.08.2012. After a period of twelve years, the present application has been filed to revoke the same on the ground of an unregistered 6/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 Will, which is not maintainable. The learned counsel further submits that the so-called unregistered Will said to have been executed by his mother is fabricated only for the purpose for denying the legal right of the plaintiff. It is the further contention of the plaintiff that the unregistered Will now projected by the defendant has not been established in the manner known to law and it is attached with serious suspicious circumstances and the attesting witnesses also cannot be reliable and their evidence clearly shows that the unregistered Will has been fabricated one. Hence, according to the him, the plaintiff is entitled to partition. Further, as far as the improvement made by the defendant, there is no evidence available on record and therefore, the plaintiff is certainly entitled to a judgment and decree as prayed for.
11.The learned counsel for the defendant would submit that though the earlier registered Will has been proved in the manner known to law, only in April 2020, when the defendant was cleaning his house for his daughter's marriage, he could locate the unregistered Will. Therefore, mere delay in filing an application will not take away his right to establish the Will. It is his further contention that D.W.2 and D.W.3, independent witnesses 7/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 have spoken about the execution as well as the attestation of the Will and there is no suspicious circumstances attached to the Will. D.W.1 has clearly spoken the reason for disinheriting the plaintiff by his mother, which is more probable. Hence, according to him, the Will has been established in the eye of law and therefore, seeks to revoke the former Letters of Administration granted by this Court in O.P.Nos.99 and 100 of 2011 dated 10.08.2012.
12.Heard the submissions made by the learned counsel for the plaintiff and the learned counsel for the defendant and perused the materials available on record.
13.The Suit is filed for partition. The relationship between the parties has not been disputed. The fact that the suit property originally belonged to the father and mother of the plaintiff and the defendant also is not in dispute. It is an admitted case of the defendant that both the father and mother had executed a registered Will on 17.08.1987. This fact has not been disputed in the written statement and it is not the case of the defendant that Will is result of forgery, undue influence or coercion or misrepresentation etc. 8/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 The only reason stated in the written statement to deny partition is that the mother had left an unregistered Will dated 05.03.2006 (Ex-D.1). Therefore, according to him, the former Will executed has been superseded by the later Will.
14.Since the execution of the previous Will has not been disputed, now the issue arise as to the proof of subsequent Will and also whether the propounder has dispelled the suspicious circumstances.
15.Now, I deal with the above issue first. This is the only main issue for deciding the entire Suit itself. Ex-D.1 is an unregistered Will projected by the first defendant. D.W.2 and D.W.3 were examined before this Court. It is relevant to note that D.W.1 in his evidence spoken about the execution of the Will. Similarly, D.W.2 and D.W.3 the so-called attesting witnesses have been testified before this Court. It is seen that the unregistered Will is typed in white paper only. Though there is no bar under the law to write a Will in any form, the fact remains that the father and mother had a capacity to execute a registered Will as early as in the year 1987. If really the 9/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 mother had an intention to supersede the former Will, which was already registered, the normal conduct of such person would be to register the subsequent Will. But whereas, this later Will has been typed in a blank white paper. The manner in which the signatures of the attesting witnesses accommodated within a narrow space proves the same. If really the Will was typed and executed in normal circumstances, there would not have been any reason for accommodating the signatures within the first page without any gap. This also one of the serious suspicious circumstances attached to Ex-D.1 Will.
16.It is also relevant to note that the specific case of the defendant is that the Will was found out or traced only in April 2020, at the time of cleaning his house for white washing for his daughter's marriage, this is also highly improbable for the simple reason that at the relevant point of time viz., April 2020, Covid – 19 pandemic was in peak in all over the World and the entire Country was under lock down and therefore, the very contention that the house was cleaned for disinfection for his daughter's marriage at the relevant point of time is also highly improbable. Even 10/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 assuming that the defendant has cleaned his house at the relevant point of time, his very cross examination itself indicates that he uses to whitewash his house once in three years. If such being is the case, if really the Will is available in the house, he would have noticed the same. However, the said Will had never seen light of the day till April 2020.
17.Be that as it may, now with regard to the evidence of D.W.2 and D.W.3, the so-called attesting witnesses, D.W.2 stated to be one of the attesting witnesses, in his evidence has stated that a person from Bengal Association is also present with D.W.3 at the time when the Will was executed by the testatrix. On a careful perusal of the cross examination makes it very clear that admittedly, the testatrix died in the year 2007. Therefore, on the alleged date of the Will, she must be around 95-96 years old wherein the evidence of D.W.1 shows that she has no health issues and she was fragile. This also creates some doubt. Further, the testatrix knew only Tamil and therefore, some person in that place, explained the contents of the Will, which is also highly improbable since the very signature also found in English. Further, D.W.2 in his cross examination, has categorically admitted that a 11/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 person from the Bengal Association is present at the time of execution of the Will and he explained the contents of the Will to the testatrix. His evidence is totally contradictory to the evidence of D.W.3. According to D.W.3, the Will was never executed at the Bengal Association and in fact, it was executed in the house of the testatrix. D.W.2 also admitted that though he was aware of the earlier Will, he has not seen it. He further admitted that the conditions of the earlier Will have been incorporated in the present Will. These aspects also creates serious doubt that even without seeing the Will, how come the incorporation of the terms and conditions of the former Will take place in the subsequent so-called unregistered Will. D.W.2 in fact admitted that he was not aware of such instructions and who has explained such terms to the testatrix.
18.D.W3 also admitted in his evidence that he did not know who has explained the testatrix about the contents of the Will and he do not know whether it was explained in Tamil. Further, D.W.3 states that he was not aware of the earlier Will and he has also not answered the question that whether the Will was explained to the testatrix in Tamil. He has also clearly 12/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 admitted that the Will was never executed in the Bengal Association, whereas, D.W.2 has stated that the Will was explained by a man who was present at the Bengal Association his evidence is contradictory stand and further the fact that the Will has been typed in a white paper and signatures of the attesting witnesses also accommodated in first page. Therefore, it is difficult to believe the so-called Will particularly when the testatrix had prior experience in executing the Will that too by a registered Will. Such was the position the testatrix executing an unregistered Will in an ordinary white paper is highly doubtful. All the doubts entertained by this Court as narrated above clearly proves the case of the plaintiff that the later Will has been fabricated only to overcome the earlier orders of this Court, wherein the application taken for revocation of the Letters of Administration granted by this Court earlier has been dismissed. To overcome such orders, the theory of unregistered Will has been introduced. Therefore, this Court is of the view that Ex-D.1 (unregistered Will) has not been established in the manner known to law and attached with serious suspicious circumstances and thus, cannot be given any significance in the eye of law.
19.As far as the application filed to revoke the Letters of 13/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 Administration granted by this Court earlier is concerned, though the defendant is said to have knowledge about the unregistered Will in the year 2020, ought to have filed such an application within a period of three years for any revocation, which has not been done so. As per Article 137 of the Limitation Act, 1963, the period of three years commenced from the date of knowledge of the Letters of Administration or subsequent Will whereas this application has been filed beyond the period of limitation. In that ground also, the application to revoke the Letter of Administration is liable to be dismissed.
20.In view of the foregoing discussions, this Court having held that the unregistered Will projected by the defendant has not been proved, the plaintiff is certainly entitled to partition as per the registered Will which has been proved before this Court in O.P.Nos.99 and 100 of 2011. Issue No.(i) is answered accordingly.
21.As far as the issue as to whether the plaintiff is liable to pay improvement charges i.e., the defendant has spent around Rs.40,00,000/- and 14/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 incurred huge expenses, except the oral statement, there is no other document to prove the nature of the expenses incurred in the property. Therefore, merely on the basis of the vague allegations, the defendant cannot now establish the fact that he incurred such huge expenses in renovating the property. Admittedly, the property is owned by the parents of the plaintiff and the defendant. Merely because one of the co-owners is in possession and making some improvement for his convenience, it cannot be construed that he has incurred such huge expenses for the benefit of other co-owner. The defendant was all along residing in that suit property. Now, it is also admitted by both sides that the plaintiff is now residing in Mumbai and only the defendant is residing in the suit property and the admission of the defendant in his evidence before this Court indicates that he has let out the property from the year 2004 on a monthly rent of Rs.55,000/-. If such being the position, the contention of the defendant that he spent a sum of Rs.40,00,000/- for improvement of the suit property has not been established. Accordingly, this issue is answered.
22.In the result, the Suit is decreed and a preliminary decree is passed for dividing the Suit properties into two equal shares and one such 15/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 share is allotted to the plaintiff and the remaining half share will go to the defendant subject to payment of Court fee in the final decree proceedings. In respect of the payment of amount by the defendant, it is well open to the parties to agitate the same in the final decree proceedings. No costs. Consequently, connected application are closed.
23.To effect division of the suit schedule property, Ms.R.V.Rukmani, Advocate, No.19, Law Chambers, High Court Buildings, Chennai – 600 104, Mobile No.98407 47011 is appointed as an Advocate Commissioner to visit the suit schedule property and file a report. The Advocate Commissioner shall issue notice to both sides before inspecting the Suit schedule property. The initial remuneration to the Advocate Commissioner is fixed at Rs.30,000/- and the same shall be paid by the plaintiff and defendant equally and directly to the Advocate Commissioner. The Advocate Commissioner is also entitled to engage a Surveyor or Engineer for proper sub-division of the property. Fees of Engineer or Surveyor shall be borne by parties.
24.For filing report by the Advocate Commissioner and for reporting compliance, post this matter on 29.01.2024.
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Index : Yes/No
Neutral Citation: Yes/No
Speaking / Non-speaking order
TK
LIST OF WITNESSES EXAMINED ON THE SIDE OF THE PLAINTIFF P.W.1 – Mr.Deba Prasad Roy LIST OF DOCUMENTS MARKED ON THE SIDE OF THE PLAINTIFF S.No. Exhibits Description of documents Date 1 P-1 Sale Deed executed in favour of Mrs.Parula Bala Roy 08.02.1951 registered as Doc.No.85/1951 2 P-2 Order passed by this Court in O.A.Nos.3524 and 3525 of 03.01.2014 2013 in O.P.Nos.99 and 100 of 2011 3 P-3 Extract of Town Survey Land Register 16.02.2015 4 P-4 Order passed by this Court in A.Nos.8533 and 8534 of 11.03.2019 2014 in O.P.Nos.99 and 100 of 2011 5 P-5 Death Certificate of Debendranath Roy 08.07.2008 6 P-6 Death Certificate of Parula Bala Roy 03.07.2008 7 P-7 Certified copy of the Affidavit of Gauri Das in O.P.No.99 25.06.2009 of 2011 8 P-8 Certified copy of the Affidavit of Uma Hazra in O.P.No.100 12.06.2009 of 2011 9 P-9 Certified copy of the order in O.P.No.99 of 2011 10.08.2012 10 P-10 Certified copy of the order in O.P.No.100 of 2011 10.08.2012 11 P-11 Certified copy of the affidavit filed by the defendant in March 17/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 S.No. Exhibits Description of documents Date A.No.8534 of 2014 2019 12 P-12 Certified copy of the Will executed by D.N.Roy registered 17.08.1987 as Doc.No.63/1987 in SRO, T.Nagar 13 P-13 Certified copy of the Will executed by Parula Bala Roy 17.08.1987 registered as Doc.No.64/1987 in SRO, T.Nagar LIST OF WITNESSES EXAMINED ON THE SIDE OF THE DEFENDANT D.W.1 – Dr.Debashish Roy D.W.2 – Mr.T.R.Krishnan D.W.3 – Mr.Saravanan LIST OF DOCUMENTS MARKED ON THE SIDE OF THE DEFENDANT Sl.No. Exhibits Description of documents Date 1 D-1 Unregistered Will 05.03.2006 2 D-2 Report filed by the defendant counsel July 2019 19.12.2023 18/19 https://www.mhc.tn.gov.in/judis C.S.NO.296 OF 2019 N.SATHISH KUMAR, J.
TK C.S.NO.296 OF 2019 19.12.2023 19/19 https://www.mhc.tn.gov.in/judis