Document Fragment View

Matching Fragments

T.O.S. No. 6/2000:

16. The plaint averments are as follows:

The plaintiff's grandfather M.S. Devaraja Chettiar died on 7.12.1975. He executed a Will at Cholavaram Village, Ponneri Taluk, Chengalpattu District on 26.10.1975. He has not appointed any executor under the Will. Plaintiff is the grandson of the deceased. The plaintiff was not aware of the Will earlier. The plaintiff along with his mother and two brothers viz. defendants 1 to 3 filed C.S. No. 267/86 for partition and separate possession. Only in or about the third week of February 1989, when they were looking into some old papers, they casually got the said Will. If they were aware of the Will, they would have mentioned the same in the plaint in C.S. 267/86. Actually a xerox copy of the Will was filed, and an application in A. No. 1296/89 filed by them was ordered by the learned Master and that order has become final. The grandfather had not done anything out of the way to any of the parties. He had given properties to his sons who are normally entitled to the same. He has omitted his daughters, probably as he felt that they had already been sufficiently provided earlier, and they had been married well by giving sufficient jewels, etc. Hence, there was no delay in filing this suit. The first attesting witness to the Will is one Mr. Kapali, who had passed away. Nobody either he or his relations are now residing in his address at No.5, Brahmin Street, Adambakkam. His wife also vacated and left long ago. They had no children. The 2nd attesting witness S. Ramasamy Iyer had also passed away. His son R. Jambunathan had given an affidavit that the will contains the signature of his father. The testator left behind him the defendants 1 to 11 as his next of kin. Hence, this suit has been filed for the above said relief.

22. The learned Senior Counsel appearing for the plaintiffs in CS 267/86 and for the plaintiff in TOS 6/2000 would submit that CS 267/86 is a comprehensive suit for partition; that the main question to be decided is whether the release deed marked as Ex.P1 and the partition deed dated 15.7.64 marked as Ex.P2 are sham and nominal; that evidence is available to show that the said documents have been brought about just to defeat the creditors; that the so-called release deed and the partition deed are only make belief affairs; that it is pertinent to note that Devaraj Chettiar continued to be in possession of all the properties; that Exs. P1 and P2 are only on paper; that from Exs. D55 to D58 it would be clear that moneys have been borrowed by the joint family members; that Ex.D50 is the family genealogy; that it is admitted that the suit property is a joint family property; that in Ex.P1 release deed, executed by Deenadayalu, the first son of Devaraja Chettiar, there is no schedule of property, and no value of the property has been given; that Devaraja Chettiar brought about a scheme to keep away the joint family property from the creditors, and hence Ex.P1 release deed was executed only to defeat the claim of the creditors; that Devaraja Chettiar and other family members continued to reside at 28/29, Selva Vinayakar Koil Street; that it is pertinent to note that the so-called creditors know that the release deed under Ex.P1 is sham and nominal, which is evidenced by Exs. D35 to D38 and D51; that Ex.D38 Judgment passed in CS 38/65 shows that Devaraja Chetty accepted the position that Exs. P1 and P2, though impliedly by his conduct by agreeing to pay to the creditors and offering property and acting in derogation of the purported allegation of transfer under Ex.P2, are sham and nominal; that though the borrowings made by Dheenadayalu was to pay to Devaraja Chettiar, the so-called Exs. P1 and P2 are invalid; that if the said documents are true and valid, Devaraja Chettiar has to contest the suit on merits; that since Devaraja Chettiar knew well that Exs. P1 and P2 are only make belief, he agreed to pay the creditors and offer them security, contrary to the purported allotment of the defendants; that the property at Door No.14, Telugu Chetty Street in 'B' Schedule allotted to Devaraja Chettiar was gifted by him in favour of Chandrammal; that it is not in dispute that this property has been offered as security by him; that from the documentary evidence it would be clear that all the properties continued to be in the name of Devaraja Chettiar and continued so even after his demise; that there has been no mention of public records; that the property allotted to Andalammal under Ex.P2 was attached by Subbiah in O.S. No. 3910/64; that in a claim petition filed by Andalammal, the court has negatived her claim; that Ex.D51 is the judgment passed in that claim petition, wherein there is a finding that she has no right and the so-called partition is sham and nominal, and that order has become final. Added further the learned Senior Counsel that it is pertinent to note that Devaraja Chettiar has admitted in his Will dated 26.10.75 under Ex.D11 that the partition is sham and nominal and the creditors also knew that the partition was sham; that the plaintiffs have proved that the property at 319, TH Road was under the control and possession of Devaraja Chettiar before and after the partition and after his demise, it was managed by Deenadayalu; that from Exs. D63 tenancy agreement and D43 note book, it is seen that Devaraja Chettiar was collecting the rent and paying a part of the same to Dheenadayalu and Thirumangai; that a perusal of Exs. D55 to D58 would show that moneys were borrowed by Devaraja Chettiar, Dheenadayalu and the other sons of Devaraja Chettiar for the purpose of construction of the property; that though Dheenadayalu executed the alleged release deed under Ex.P1, he continues to participate in the affairs of the joint family by joining the execution of security documents for borrowing the moneys; that PW2 has admitted that Thirumangai married his aunt's daughter against the wishes of Devaraja Chettiar; that at the time of the execution of the sham and nominal Ex.P2 partition deed, Thirumangai had no intention of getting married; that when he married his aunt's daughter, Devaraja Chettiar was alarmed and made him to execute Ex.D45, which is a sale deed purportedly selling the said property to Saraswathi Rajan; that this was done on 14.12.1966 just four days after the marriage of Thirumangai; that in order to have a hold over the property, Devaraja Chettiar made Saraswathi Rajan to execute Ex.D46 mortgage deed in his favour; that it remains to be stated that after his death, Ex.D47 was executed between Saraswathi Rajan and Thirumangai, in which there is a categorical admissiokn that Exs. D45 and D46 were sham and nominal transactions; that after the death of Devaraja Chettiar, the properties were managed by Dheenadayalu, as evident from Ex.D64 rental adjustment agreement; that it is pertinent to note that there was no mutation of the public records carried out in the name of the respective allottees; that a perusal of Exs. D27 to D34 would show that Devaraja Chettiar was residing in the 'A' Schedule property allegedly allotted to Andalammal; that 'B' Schedule property was purportedly allotted to Devaraja Chettiar under Ex.P2 which is sham and nominal; that a perusal of Exs. D41 and D42 documents would indicate that Devaraja Chettiar continued to remain as the owner of that property; that it is pertinent to note that the other properties continued to stand in the name of Devaraja Chettiar; that the defendants have not produced any records to show that Narasimhan took possession of the 'C' Schedule property pursuant to the alleged partition; that so far as the Perambalu Chetty Street property under 'D' Schedule is concerned, the same also continued to stand in the name of Devaraja Chettiar, which is evidenced by Exs. D44, D48 and D49; that 'E' Schedule property was sold by the plaintiffs only to meet some urgent family necessities; that after the death of Devaraja Chettiar and Deenadayalu, the defendants started acting as if the partition under Ex.P2 was effected and started dealing with the joint family properties; that at that point of time, the plaintiffs were deserted by their own brother Govardhan; that since the plaintiffs were placed in difficult financial situation, they had to borrow money from one Pakkir Mohammed, who insisted on the security of 'E' Schedule property in the form of an unregistered sale deed which he assured would be returned on repayment; that however, Pakkir Mohammed presented the document for compulsory registration; that he also filed a suit in OS Nlo.9620 of 1984 for specific performance; that a compromise was arrived at in 1989 and the property was registered in the name of Pakkir Mohammed only in 1991; that Ex.P9 is only a pending document; that a perusal of Ex.P9 would reveal that the plaintiffs have assured the purchaser that they will indemnify him if ultimately they are held to be disentitled to the said property; that the admissions made in Ex.P9 as to the partition are erroneous, since the plaintiffs have been consistently maintaining from 1978 onwards that the partition was only sham and nominal and never acted upon, which is evident from the written statements filed in Tr. CS 1249/93 and Tr. CS 210/2000; that the dealing of 'E' Schedule property by the plaintiffs will not operate as estoppel against them or stop them from claiming partition; that the plaintiffs are ready and willing to adjust this amount, if partition is ordered; and that during the life time of Devaraja Chettiar, the rents from this property were collected by him through the first plaintiff and all were living only at 28/29 Selva Vinayakar Koil Street, as joint family. Added further the learned Senior Counsel that it is pertinent to note that the properties under 'F' Schedule were purportedly reserved for meeting the marriage expenses of Padmavathi and Manivalli; that their marriages were performed in 1964 and 1967 respectively, which is evident from Exs. D13 and D14 marriage invitations; that it has to be noted that F Schedule property was sold on 14.11.68 under Ex.P17 after their marriages; that this property was sold to Kasiammal, wife of Subbiah Nadar, one of the creditors for discharge of debt by adjusting part of sale consideration; that the purported allotment of F Schedule is only make belief and it continued to be the joint family property and dealt with as such; that it is pertinent to note that there is a reference to Ex.P2 partition deed in this sale deed and it is of no legal effect because the purpose mentioned in Ex.P2 has not been acted upon; that though it is alleged that 2 acres of land was gifted by Devaraja Chettiar in favour of Gowri, no gift deed is produced; that the joint family property cannot be the subject matter of right; that it has been in the possession of the plaintiffs even today, which is evident from Exs. D61 and D62 notices; that the property tax receipt and patta are in the name of Devaraja Chetty; that during the pendency of the suit in 1996, it was stated that the patta has been changed in the name of Gowri without any notice and enquiry; that Ex.D2 series school fee receipts of PW1, D5 series, Exs. D6 and D7 mess bills of PW1 sent to Deenadayalu, Exs. D8 to D12 money order coupons for the moneys sent by Dheenadayalu to PW1, Exs. D13 to D15 money order coupons for the moneys sent by the second plaintiff Nandakumar to PW1, Exs. D1 and D17 to D21 letters sent by PW1 to Dheenadayalu, Ex.D22 letter sent by Jagadeesan to Nandakumar, Ex.D24 radio license in the name of Nandakumar, Exs. D25 and D26 notice and receipt and Exs. D52 to D54 discharged promotes executed by Deenadayalu show that the plaintiffs have always resided in the property at 28/29 Selva Vinayakar Koil Street before and after the partition and were not residing at Cholavaram; that Exs. P20 and P21 series show that the plaintiffs 2 and 3 were studying at Cholavaram, and the said documents have no meaning; that for the purposes of admission in the school, the address at Janapam Chattiram has been mentioned; that it is relevant to note that the obvious motive of Deenadayalu appears to be that the moneys receivable to the estate of Devaraja Chettiar should not go to the female heirs, and that is the reason why he is relying upon the so-called partition under Ex.P2; that the available evidence would indicate that the family was in the habit of resorting to the execution of sham and nominal documents to fulfill some limited purpose; that the main objective of Deenadayalu appears to be to only safeguard the interests of the joint family; that the dominating influence of Chandrammal on the family patriarch is evident from the fact that she appears to have induced Devaraja Chettiar to execute gift deeds in her favour and in her daughter's favour and she has also procured a Will in favour of Govardhan from Andalammal and also 250 sovereign of gold and silver articles at the time of demise of Devaraja Chettiar and not denied in the written statement filed by Chandrammal; and that the reason for Saraswathi Rajan, who was examined as PW2, to give false evidence is also obvious because she wants to protect the property at 319, T.H. Road for her son-in-law Janarthanam who is the son of Thirumangai. Added further the learned Senior Counsel that the question whether the oil business run by Devaraja Chettiar was the joint family business or separate business may not be of any relevant or consequence; that that all the members of the family were not parties to Ex.P1 release deed; that the creditors have also pleaded in CS 38/65 that the borrowing was not only for the business but also for joint family purposes; that a perusal of paragraph 9 of the written statement in that suit, as found under Ex.D36 would clearly show that whole thing is sham and nominal and fraudulent, just to defeat the creditors and nothing else ; that apart from 1/20th share allotted to Dheenadayalu, there is still 19/20 shares; that this will show that the so-called partition and the allotment of shares are sham and make belief; that the question whether the debt was binding on the joint family is irrelevant; that since the so-called allotment was only a make belief, no care has been taken to have an equal distribution; that this not the case to set aside the partition deed by the minors on attaining majority; that that is not the case to reopen the partition deed on the ground that it is unequal; that sham means a make belief one, while nominal also means a make belief one; that both do not create any legal rights and both will not have any existence in the eye of law; that if Exs. P1 and P2 are sham and nominal, they are non-est in the eye of law, and there is no necessity to seek for a prayer to set aside the same or seek for a declaration that they are sham and nominal; that the decision reported in 1948 (1) MLJ 270 is relevant in this regard; that if the documents have no legal existence, the right, title and interest of the plaintiffs in the joint family properties were never affected and they continue to be joint family properties available for partition; that only after the lifetime of Devaraja Chettiar, while getting a succession certificate for the purpose of collecting debts, a reference was made to the partition deed; that it is pertinent to note that in the OP for succession certificate, no joint family property was involved; that the question of limitation in this case does not arise; that if the defendants claim title under the so-called partition deed under Ex.P2, there is no question of adverse possession; that the question of ouster and adverse possession will come only if the partition is sham; that during the lifetime of Devaraja Chettiar nobody had any animus to claim adverse possession of the joint family properties; that only after the demise of Devaraja Chettiar, there was a reference to the partition deed dated 15.7.64 in the proceedings for issue of a succession certificate in the year 1976, marked as Ex.P19; that the suit in CS 267/86 for partition is filed in 1986 i.e. within 12 years from 1976, and hence, no question of ouster or adverse possession would arise; that it remains to be stated that the plaintiffs have not questioned the alienation and that is why 'F' Schedule properties have not been included in the plaint schedule; that regarding 'E' Schedule properties, they have been compelled to part with the same during the pendency of the litigation, since the earlier suits have been initiated even in the year 1978 and 1979; that since the plaintiffs have no money to meet the litigation expenses, they borrowed money from the third party, and the third party has taken the document stating that he will keep it as security, but he put that document for compulsory registration, and thus, the recitals in Ex.P9 cannot be taken as voluntary admission; that it is well settled that the fact of an alleged admission depends upon the circumstances in which it was made; that the giving the value of 'A' to 'F' Schedule properties at Rs. 20,000/- uniformly clearly shows that it is only a make belief affairs; that so far as the non examination of the wife of Deenadayalu is concerned, it is admitted by PW1 himself in his evidence that his mother is suffering from high blood pressure and arthritis and not in a position to move about, and thus a proper explanation has been given for the non-examination of the mother; that the non-examination of the wife of Dheenadayalu may not be fatal and there is no case made out for drawing adverse inference, and hence, the plaintiffs are entitled to the partition as asked for in CS 267/86, and the suit for recovery of possession in Tr. CS 210/2000 has got to be dismissed. Added further the learned Senior Counsel that the Will dated 26.10.1975 executed by Devaraja Chettiar as found in Ex.P1 in TOS 6/2000 has been proved in a manner known to law; that the defendants themselves have admitted that Ex.P1 document contains the signature of the testator, and thus the burden of proof is only upon the defendants to disprove the said document; that it is pertinent to note that the attestation is also proved by identifying the signature of one of the attestors; that it is not the case of the defendants that the Will was extracted by undue influence or that there are suspicious circumstances; that a perusal of the recitals in Ex.P1 would clearly show that they are all true; that for writing a will, no format or no stamp is necessary; that the registration of the document is not compulsory; that if a person is going to fabricate a Will with a signature in blank paper, he would not have put 'ippadikku', and thus, it is clear that 'ippadikku' put in natural course and nothing wrong in it; that the will is duly executed and attested by two witnesses; that the said will is an outcome of the testator's own will and volition; that there is unnatural about the will; that regarding the proof of this kind of Will and the delay in approaching the court, the decision reported in 2001 (3) CTC 283 is very much relevant; and hence, the letters of administration as asked for in TOS 6/2000 has got to be granted in favour of the plaintiff. The learned Senior Counsel would further submit that the Will of Andalammal does not cover her entire assets such as the mortgage amounts due to her from some parties, which is evident from Exs. D59 and D60; that she had no independent source of income; that it was only the money out of the joint family controlled by Devaraja Chettiar; that the amounts bequeathed to the plaintiffs 2 to 4 have not been paid to them; that it is pertinent to note that the plaintiffs have not been impleaded in the said probate proceedings even though they have a caveat able interest in the estate of Andalammal; that PW1 has admitted that he has not been adopted by Andalammal nor is this mentioned in the said Will; that Andalammal was under a paralytic attack from 1968 onwards and was not in a sound state of mind; that the said Will of Andalammal was not acted upon during the lifetime of Devaraja Chettiar even though he has been appointed as the joint executor of the Will; that Devaraja Chettiar himself does not appear to have taken cognizance of the Will as in Exs. D59 and D60 he has only acted as the legal representative of Andalammal and not as the executor of the Will; that the probate was not applied for during the lifetime of Deenadayalu as it was well known that he would have objected to the same, and hence, the probate granted in respect of the Will of Andalammal has got to be revoked.

23. The learned Counsel appearing for the plaintiffs in Tr. CS 210/2000 and Tr. CS 1249/1993 would submit that the subject matter in CS 267/86, Tr. CS 1249/93 and Tr. CS 210/2000 are joint family properties; that Madurai Subbiah Chettiar had two sons viz. Gopalakrishna Chettiar and Devaraja Chettiar that being joint family properties, Gopalakrishna Chettiar had a half share and Devaraja Chettiar had the other half share; that under the Hindu Women's Right to Property Act 1937, on the death of Gopalakrishna Chettiar, his widow Andalammal becomes entitled to his half share; that when she became entitled to half share, she was entitled to life interest; that as per the provisions of Hindu Succession Act, 1956, her life estate ripens or enlarges into an absolute estate, and thus, she was entitled to a half share in all the properties; that however, she was allotted only one item of property at 28/29 Selva Vinayakar Koil Street viz. 'A' Schedule property under Ex.P2 partition deed; that being the owner of that property, Andalammal executed a Will bequeathing the said property to D. Govardan and his sons; that under the Will, she appointed Chandrammal and Devaraja Chettiar as executors; that since probate was not obtained during the lifetime of Devaraja Chettiar and since the wife and sons of Deenadayalu have got into possession of A Schedule property, Chandrammal, one of the executors under the Will, applied for and obtained probate to the Will of Andalammal dated 12.7.68 in OP 488/78 and instituted the suit in Tr. CS 210/2000; that Andalammal was perfectly entitled to execute the said Will; that there are ample evidence to show that after the partition in 1964, the three sons of Devaraja Chettiar went out and were living separately; that Deenadayalu, his wife and sons were living in Cholavaram during 1972-76, and hence, they could not have been living at 28/29, Selva Vinayakar Koil Street; that DW1 has also admitted in his evidence that he also studied in the Government Higher Secondary School at Cholvaram; that when direct and positive evidence of Dheenadayalu and his branch having lived at Cholavaram has been placed, the circumstance of Dheenadayalu having given his address as 28/29 Selva Vinayakar Koil Street or the circumstance of their not having done anything to effect mutation of names etc., would not prove that the partition is not true and that the same was not acted upon; that the title of Andalammal to 'A' Schedule property has been proved; that when once title is proved, the defendants in Tr. CS 210/2000 have to prove in what capacity they have been in possession; that the rents from the property were received by the branch of Dheenadayalu in 1979; that DW1 has admitted that his brother Nandakumar as receiver of the property, has been depositing Rs. 6,000/- per month in the Court, and thus, the defendants have to account for the exact amount they have collected at different points of time and pay the said sum to the plaintiffs in Tr. CS 210/2000; that apart from that, they have also to pay mesne profits towards their occupation of the big portion of the property. Added further the learned Counsel that the story of the plaintiffs in CS 267/86 that Ex.P1 release deed and Ex.P2 partition deed were brought about in order to defeat and delay the creditors and that the said partition did not come into effect and was not acted upon is false; that the available evidence would show that the debts of Subbiah Nadar and Subbarayalu Chetty are debts of Dheenadayalu and not family debts; that in order to save the reputation of the family, Devaraja Chettiar agreed to pay the debts incurred by Dheenadayalu; that subsequently, Devaraja Chettiar discharged the two debts to the tune of Rs. 51,000/-, which is evidenced by Exs. D55 and D57 discharged pro-notes; that it is pertinent to note that there were no other creditors except Subbarayalu Chetty and Subbiah Nadar; that it is proved by evidence of DW1 that the value of the estate is Rs. 16.5 lakhs and the value of the estate according to the plaint in CS 38/65 is Rs. 20 lakhs, and hence, there could not have been any intention on the part of Devaraja Chettiar to create a sham and nominal partition with the intention of defrauding the creditors; that according to the evidence of DW1, his father Dheenadayalu filed a written statement in CS 38/65 admitting that there was no family business and his family business was not a trading one and he started oil business on his own and the release deed and partition deed under Exs. P1 and P2 were bona fide and it was not prepared with the intention to defraud the creditors; that it is pertinent to note that in the proceedings for issue of succession certificate in OP 263/76 initiated by Narasimhan, Dheenadayalu filed a counter stating that there was a partition in respect of immovable properties, but in regard to movables like money assets there was no partition; that under P2 partition deed, 'E' Schedule property allotted to the plaintiffs in CS 267/86 was sold by them; that to get over this situation, DW1 has deposed that it was a compulsory sale by them; that whether the sale was voluntary or compulsory, the fact remains that tracing their title to the partition deed, they have sold the property; that gifting one item of property which fell to the share of Devaraja Chettiar under B Schedule viz. Door No.14, Telugu Chetty Street, to his eldest daughter Chandra Jagadeesan under Ex.P10 and two acres of land in Alinjiwalkkam Vilage to his grand daughter Gowri would also prove that the partition was acted upon; that so also, 'F' Schedule properties which was reserved for meeting the marriage expenses of two unmarried daughters Padma and Manivalli, were sold for their marriages and the sale proceeds were utilized for meeting the debts incurred by Devaraja Chettiar for their marriages; that similarly, Andalammal who obtained 'A' Schedule property under the partition had executed a registered Will dated 12.7.68 bequeathing the same to D. Govardan for life with vested remainder to his sons; that Thirumangai the third son of Devaraja Chettiar obtained D Schedule property and effected partition of the said property between himself and his wife and sons, as evidenced by Ex.P12; that it is evident from Ex.P11 that all the defendants in the family of Devaraja Chettiar have sold the lands in Thandlakeni Veillage; that their father Dheenadayalu and Mrs. Padmavathi sold their respective extents in the said land; that there has been no acceptable proof to show that the value of the properties allotted to different persons was highly different so as to prick the conscience of anyone; that after partition, three sons of Devaraja Chettiar started living separately; that while the value of the properties are each shown as Rs. 20,000/- in the partition deed, Dheenadayalu's branch was not entitled to separate allotment of 'E' Schedule property; that Dheenadayalu had already been given Rs. 20,000/- as consideration for the release deed under Ex.P1; that apart from that Dheenadayalu's family was given a house property in Sowcarpet which was valued at Rs. 20,000/-; that this means that Dheenadayalu's branch were given property worth Rs. 40,000/-; that it is not the case of Dheenadayalu's branch that his father Dheenadayalu colluded with his brothers and his father in depriving his sons of their lawful share in the property; and that it is pertinent to note that the wife of Dheenadayalu viz. Saraswathi filed a written statement confirming the written statement of the 1st defendant Devaraja Chettiar about partition. Added further the learned counsel that much ado is sought to be made about a transaction entered into between Thirumangai, his elder sister cum mother-in-law and Devaraja Chettiar under Exs. D45 to D47; that PW2 Saraswathi Rajan has given explanation under what circumstances these transactions came into existence; that there is a clear confirmation of the truth and validity of Exs. P1 and P2 by Dheenadayalu himself in CS 38/65 and Succession OP 263/76; that the suit for partition is not maintainable in law without seeking the relief of setting aside the partition deed under Ex.P2 within the limitation period; that the plaintiffs in CS 267/86 ought to have instituted appropriate proceedings to set aside the partition within a period of three years from the date of the minors' attaining majority; that it is settled law that when a person who institutes a suit claiming various reliefs is a eo-nominee party to a deed or decree previously which is sought to be canvassed in subsequent proceedings, he cannot do so without setting aside the deed or document to which he himself was a party, within the prescribed limitation period; that the suit in CS 267/86 is barred by limitation; that the said suit is also not maintainable in view of the fact that the 'F' Schedule property under the partition has not been included in the plaint, and similarly, the lands which were alienated in favour of third parties have not also been included in the suit; that it is settled law that the alienees should be impleaded as parties so that while directing partition of property by metes and bounds, equities may be worked out by allotting the alienated items to the share of alienor; that admittedly, Sudarsana Narayanan, examined as DW1 was two years old at the time of partition, and therefore, he could not have had any personal knowledge about the value of various properties; that he has not examined any engineer or any other qualified person to speak with regard to the value of the properties which prevailed in 1964; that subsequent cost escalation is totally irrelevant for deciding the question if the partition was equal as on 1964; that when all people agreed to divide the property and executed partition deed, mathematical equity cannot be insisted upon; and hence, Tr. CS 210/2000 and Tr. CS 1249/93 have got to be decreed and a direction for partition of the properties of Devaraja Chettiar between all his sons and daughters or their respective branches has got to be issued. Added further the learned counsel that Deenadayalu and his branch who entered the house property at 28/29 Selva Vinayakar Koil Street under the leave and license granted by Chandrammal, started making adverse or hostile claims and started collected the rents from the tenants; that there arose a necessity for Chandrammal and Govardhan to assert their right to the property under the Will of Andalammal dated 12.7.68, and hence, Chandrammal filed OP No.488/78 for grant of probate of the said Will; that probate was granted on 13.3.79; that the wife and sons of Dheenadayalu except Govardan filed Application No.4656/2000 for revocation of grant of probate; that even in the plaint in CS 267/86 in paragraph 10, they have admitted about the Will of Andalammal dated 12.7.68, the death of Andalammal on 23.3.73 and the grant of probate on 13.3.79; that the probate was obtained even before the filing of the partition suit in CS 267/86; that in Tr. CS 210/2000, Chandrammal and Govardan had specifically referred to the Will of Andalammal and the grant of probate; that this belated application is filed for revocation of the probate after 21 years; that under the provisions of Indian Succession Act, the applicants are not entitled to seek an order of revocation of probate; that it is only as a counterblast in order to put forward a defence to the suit in TR. CS 210/2000 that the above petition has been filed on knowingly false allegations, and hence, the application No.4656/2000 has got to be dismissed. The learned counsel would further submit that the alleged Will of Devaraja Chettiar dated 26.10.75 is a spurious and fictitious one; that the same is a false and fabricated in a blank paper containing the signature of Devaraja Chettiar; that taking advantage of the signature of Devaraja Chettiar in a blank paper, the plaintiff Sudarsana Narayanan and his brother Nandakumar have filled up the contents of the Will through some person known to them; that it is well settled that the propounder of the Will has to satisfy the conscience of the Court that the alleged will is a true and genuine document, and all the suspicious circumstances have to be clearly explained by the propounder of the Will; that the alleged will is an unregistered one; that there is no explanation as to the non-registration; that due attestation of the will has not been proved; that the attestors are persons not known to Devaraja Chettiar and had no connection with him; that there is no proof that the attestors have attested the alleged Will on 26.10.75 simultaneously seeing the execution of the Will by Devaraja Chettiar; that there is no proof to show that the attestors are not alive and no death certificates have been made available; that after the last line of the contents of the Will, there is enough blank space between the last line and the signature of Devaraja Chettiar, and in order to cover up the same, the word "ippadikku" is used which is very unusual in a Will; that admittedly, there were no disputes between the family members in 1975; that the disputes arose for the first time only in 1978 after the death of Dheenadayalu; that in such a situation, there was absolutely no reason for the testator having written in the so-called Will that there was a partition previously; that this shows that in order to bolster up their false case in CS 267/86, such a recital has been introduced in the Will; that except reference to the eldest son of Dheenadayalu and his sons, there is absolutely no reference to the other sons or daughters of Devaraja Chettiar in the Will; that no reason is given by the testator why he was excluding the daughters or of not giving any property to them; that the Will is therefore, quite unnatural; that there was no occasion for Devaraja Chettiar to go to Cholavaram and write a Will; that the alleged Will is not in the handwriting of Devaraja Chettiar; that he does not know who had written the Will; that the Will is in Tamil; that the name of the scribe is not mentioned; that there is no clause like "This will come into effect after my life time. I reserve my right to execute another Will or modify the terms of this Will during my lifetime." finds place in the alleged Will; that the plaintiff Sudarasana Narayanan has not proved the due execution and attestation of the Will; that Devaraja Chettiar would not have dealt with the entire joint family estate, and this would go to show that he could not have executed the impugned Will; that the plaintiff in TOS 6/2000 has not proved the truth, genuineness, due execution, attestation and the validity of the alleged Will, and hence, the suit in TOS 6/2000 has got to be dismissed.

32. Many are the circumstances, pointing to the fact that Ex.P2 partition deed has actually been acted upon. The life interest of Andalammal, wife of Gopalakrishna Chettiar, enlarged into an absolute estate by operation of law and in view of the provisions of the Hindu Succession Act, 1956. Though the half share was available to her in all the properties of the family under Ex.P2 partition deed, she was allotted only "A" Schedule property there under, which is situate in Old No.10, New No.28/29, Selva Vinayakar Koil Street, Old Washermanpet, Madras 21. She has executed a Will in favour of P.W.1 Govardan and his children on 12.7.1968. It is pertinent to note that Devaraja Chettiar and Chandrammal were appointed as executors under the Will. After the death of Devaraja Chettiar, Chandrammal, an executor under the Will, applied for probate of the same in O.P. No. 488 of 1978 and got the Will probated, as evidenced by the certified copy of the order marked as Ex.P3. Andalammal died on 23.3.1973. Thus, in respect of the properties allotted to Andalammal under Ex.P2 partition deed viz. "A" Schedule property, she has executed a Will, and the Will has also been probated by this court.