SA/901/1989 of ETHIRAJA NAICKER Vs KRISHNAN on 13 December 2002

:JUDGMENT

This second appeal is preferred against the judgment anddecree, dated 17.1.1989, rendered in A.S.No.58 of 1988 on the file of DistrictJudge, Chengalpattu. The plaintiff is the appellant herein.

2. The case of the plaintiff is briefly as follows. Theplaintiff is the eldest son of defendant No.1 and defendants 2 to 4 are hisother sons and they constitute a joint Hindu Family. The suit properties areundivided Hindu Joint Family properties of the plaintiffs and the defendants.Pending the suit, the first defendant died leaving behind the plaintiff anddefendants 2 to 4 as his legal heirs. The plaintiff is entitled to 1/4thshare and the defendants 2 to 4 are entitled each to 1/4th share in theproperties. The joint family owned 60 goats, which multiplied in number andthey were sold for good price. Later, rams were purchased by the joint familyand they were sold and lands were purchased by defendant No.1 for the jointfamily. The plaintiff, who was employed in Forest Department, raisedcasuarina crop in plaint item 7 and it was sold and the money was utilised todischarge debts as well as to pay the purchase money for purchasing item 7 inthe name of his mother. The plaintiff's sister Rukmani Ammal died about 20years ago, issueless. The plaintiff and the defendants are her legal heirsand they are entitled to equal share. The plaintiff and the defendants, outof their own earnings and joint exertions, purchased several items ofproperties and they were treated as joint family properties.The plaint 8th item of Punja land was purchased in the name oftheir mother Annapurani Ammal during the year 1963 for the benefit of thejoint family and she died in the month of April, 1976. In fact, out of thejoint family funds, a Well was sunk in that property and an Oil Engine wasfixed. Plaint items 9 and 10 were purchased in the year 1970 in the name ofdefendants 2 and 3 by raising loan over plaint items 1 and 5 from DoraiswamyNaicker's son-in-law. Defendants 2 and 3 have no independent earnings anddefendant No.4 is yet to be married. The plaintiff, though having a separateresidence with his maternal uncle, the properties are in joint possession withthe defendants and enjoyed as undivided Hindu Joint Family properties.The defendants 2 and 3 took defendant No.1 to Sub-Registrar'sOffice at Thiruporur and created a fraudulent deed in their names byexercising undue influence and coercion on him with regard to plaint items.From that onwards, there was difference of opinion between the plaintiff andthe defendants. There are sixty palmyrah trees in plaint item 9 and 5 coconuttrees, 1 mango tree, 15 poovarasa trees and 1 palmyrah tree in plaint item 8along with a Well. There are about two tamarind trees in plaint item 12. TheWells in the suit properties were sunk by the plaintiff and the defendants andthey are in joint possession. The plaintiff is living in the suit property.A sum of Rs.1,000/- has been lent out of the joint family funds toVenkataragavachari over his lands in S.No.249/2 in an extent of 0.18 cents andin S.No.249/3 in an extent of 0.76 cents and the plaintiff is also entitled to1/4th share in that outstanding amount mentioned in 'B' schedule. There aremoveables as well as jewels mentioned in 'C' schedule, in which, the plaintiffis entitled to 1/4th share. Inspite of demands, the defendants are not comingfor an amicable sharing of the properties. Plaintiff issued a notice on22.2.1977 and no reply was received from the defendants. Hence the plaintiff has filed the suit seeking a preliminary decree for partition of his 1/4thshare in the suit properties and for division of those properties by metes andbounds.

3. Defendant No.1, when he was alive, filed a written statementin the suit in which he contended as follows. There was no ancestral nucleusor properties to be inherited by him at the time of his father' s death.After the death of his father at Madras, defendant No.1 came to the suitvillage in his early years and settled there. He had no joint family propertyand out of his own exertion and hard work saved money by cultivating the landsof Krishnaswami Iyer of an extent of 2.00 acres on Waram basis. Later hecultivated the lands of Kuppa Iyer. Besides this, he and his wife, during"Karthigai" and festival days, used to sell 'pori' and 'avul' and out of thatincome, he purchased the properties in his own name for his own benefit. Themother of defendant No.1 purchased a house site in 1911, described as itemNo.11 in 'A' schedule, and defendant No.1 alone is entitled to that item. Itis not the ancestral property. Later, defendant No.1 got assignment of item12 on 7.12.1938 and it is his self acquisition.

On 30.6.1941, item No.1 was purchased by him from one Adilakshmi Ammal for Rs.175/-. On 27.6.1946, defendant No.1 purchased itemNo.6 for a sum of Rs.300/- under a registered sale deed. Defendant No.1purchased plaint item No.3 for a sum of Rs.300/- from Thayarammal. Item No.2was purchased by him for a sum of Rs.300/- from Sundarammal and another in1947. In S.No.362/17, defendant No.1 purchased 0-17 cents under a registeredsale deed, dated 25.11.1963 for a sum of Rs.10 0/- from Rangasawami, which isa portion of item No.8. In that item, defendant No.1 is entitled to only 0-17cents and not 0-37 cents as stated in the plaint. Defendant No.1 purchaseditem No.4 for Rs.500/- on 4.10.1967 from Devarjan and another. The aboveacquisitions are the self acquisitions of defendant No.1. Defendant No.1 hasno interest in item Nos.6,7 and 9 of 'A' schedule. Item No.6 is owned bydefendants 2 and 3, who had purchased the same for a sum of Rs.1,600/- fromJanaki Ammal. Plaintiff is not entitled to any share in those items and theyare not joint family properties.The averments in the plaint that the joint family had 60goats, which multiplied in number and later rams were purchased and sold aredenied. The averment that the plaintiff raised casuarina crop in item No.7and its sale proceeds were utilised for discharge of debts as well as topurchase properties are denied. The further averment that the plaint itemNo.7 was purchased in the name of the mother by the plaintiff is not true.That item was purchased by defendants 2 and 3 out of their own funds for theirbenefit. None of the properties are joint family properties and they werenever treated as such. Item No.8 is not owned by the family. No joint familyfund was available for digging well or for improving it as alleged in theplaint. Item No.9 was purchased by defendants 2 to 4 benami in the name oftheir mother under a registered sale deed, dated 17.7.1964. Item No.10 waspurchased by defendant No.3 with his own funds. Defendant No.1 was not takento Sub-Registrar's Office to create a fraudulent deed by exercising undueinfluence or coercion upon him and no deed was executed. The trees mentionedin numbers are all exaggerated. Defendant No.1 advanced a sum of Rs.2,000/-to one Venkataraghavachari over S.No.249/2 and 249/3. There are no moveables.The existence of 'C' schedule property in the plaint is denied. No jewel isowned by defendant No.1. With the funds provided by defendant No.1, the plaintiff constructed a house. In that house the plaintiff and the defendantsare entitled to share. The suit is bad for non-joinder of that item.Plaintiff is residing separately since 1961 soon after his marriage and he isestopped from claiming any share in the suit properties.

4. Defendants 2 and 3 in their written statement, which wasadopted by defendant No.4, have stated as follows. There is no joint familyor joint family property as alleged by the plaintiff. The plaintiff and thedefendants do not constitute Hindu Joint Family. The plaintiff is livingseparately from the year 1962 soon after his marriage and he is employed inForest Department and he is having income of his own. The averment that thejoint family owned goats and rams is not true and the further averments thattheir sale proceeds were utilised for the purchase of lands are not correct.Defendants 2 and 3 took on lease about 1-1/2 acres of land from oneVenkataraghavan and others on 'Guthagai' basis and on festival days,defendaants 2 to 3 did business in 'avul' and ' pori' in Thiruporur wherethere used to be heavy pilgrim rush. Besides, defendants 2 and 3 used to cutcasuarina trees on contract basis and they had their own income and from thesavings, they purchased item No.9 in the name of their mother on 17.4.1964 forRs.500/- and that item is exclusively owned by them. They have been inpossession and enjoyment of that item even during the life time of theirmother and she never claimed any title to it. On the contrary, she recognisedthe title of defendants 2 and 3 . The defendants have prescribed title byadverse possession by being in possession for more than a statutory period.Plaint item No.7, namely, 15 cents in S.No.412/18, is the 'Sridhana' propertyof their mother and the plaintiff and the defendants are each entitled toequal share. Defendants 2 and 3, out of their own income, purchased plaintitem No.6 for a sum of Rs.1,600/- from Janaki Ammal under a registered saledeed and it is their exclusive property. Defendants 2 and 3 have no interestin the properties purchased by defendant No.1 out of his own funds. ItemNo.10 was purchased by defendant No.3 alone out of his own earnings forRs.300/- on 14.7.1970 from Munuswami Naicker. Defendants 2 and 3 alone haveadvanced Rs.2,000/- to Venkataraghavachari in 1964 and the joint family didnot advance any amount. The plaintiff is not entitled to any share in thesuit properties.

5. In their additional written statement, which was adopted by defendant No.4, defendants 2 and 3 have contended that defendant No.l died inMarch, 1980 and while he was in sound disposing state of mind, he executed aregistered will on 17.5.1978 bequeathing his properties to defendants 2 to 4and they alone entitled to the properties bequeathed under the Will. Theplaintiff is not entitled to any share. The Will was attested by VeerasamiNaicker and A.Kothandam and it was presented for registration by the testatorManicka Naicker himself.

6. On the above pleadings, the trial court framed 15 issues andon a consideration of oral and documentary evidence granted a preliminarydecree for partition of 1/4th share of the plaintiff in the entire suitproperties as prayed for with costs. Aggrieved by the same, defendants 2 to 4preferred appeal in A.S.No.58 of 1988 on the file of District Judge,Chengalpattu and the learned District Judge modified the judgment and decreeof the trial court and granted a preliminary decree in favour of the plaintiff

only regarding his 1/4th share in Item Nos.7 and 9. Against the judgment ofthe lower appellate Court, the plaintiff has preferred the present secondappeal and defendants 2 and 3 have preferred Cross Objection against the grantof preliminary decree in so far as item Nos.7 and 9 are concerned. When thesecond appeal was pending in this Court, the 3rd respondent Audikesavan diedunmarried leaving behind him as his legal heirs only the appellant andrespondents 1 and 2. The appellant filed petition in C.M.P.No.57 32 of 2002seeking for amendment of the plaint claiming 1/3rd share in the suitproperties. This Court, by order dated 12.6.2002, allowed the petition andthe plaint was amended accordingly. For the sake of convenience, the partiesare described as arrayed in the suit in this judgment.

7. At the time of admission of the Second Appeal, this Court framed the following substantial questions of law.

"1) Whether the properties in question are the joint family propertiesin which the plaintiff is entitled to a fourth share.

2) Whether the appellant was not entitled to urge before the learnedDistrict Judge the fact that the properties were joint family propertiesnotwithstanding the fact that the said question had been negatived by thetrial judge while granting partition.

3) Whether the plaintiff is not entitled to claim partition of item 11as the same stood in the name of the 1st defendant's mother ( paternalgrand-mother).

4) Whether the learned District Judge was in error in stating that Ex.B.45, the Will, had been established without considering the circumstancesunder which the will propounded by the defendants, had been executed.5) Whether all the properties ought to have been held to be jointfamily properties and that the plaintiff/appellant is entitled to a fourthshare."

8. The suit properties are mainly agricultural lands and house sites. The plaintiff and defendants 2 to 4 are the sons of the deceased 1 stdefendant. 1st defendant died pending the suit and after that, the plaintiffclaim 1/4th share in the entire suit properties. At the time of filing of thesuit, the 1st defendant-father was alive and he filed written statementcontending that the suit properties are not joint family properties ascontended by the plaintiff and except item Nos.6, 7 and 9, all other items arehis self-acquisitions and the plaintiff is not entitled to any share.Defendants 2 to 4 in their written statement denied the claim of theplaintiff. After the death of the 1st defendant, they filed additionalwritten statement stating that the 1st defendant executed a registered Will on17.5.1978 bequeathing his properties in favour of defendants 2 to 4 and theplaintiff is not entitled to any share.

9. The onus is on the plaintiff to show that the suit properties are joint family properties. In the plaint he claims that thejoint family owned 60 goats and they multiplied in number and some rams werepurchased and they were also sold and the 1st defendant purchased the suitproperties from that income. The plaintiff in his Ex.A-1 suit notice did notstate that the joint family owned goats or rams. It is only in the plaint hehas come up with this case. The 1st defendant-father purchased item No.1 of

the suit properties as early as in 194 1 in his own name. At that time, theplaintiff was aged only 5 years and there was no evidence adduced by theplaintiff to show that 1st defendant owned goats or rams and they were sold.Item Nos.2 to 5 were purchased under Exs.B-3 to B-7 sale deeds and item No.12was purchased under Ex.B-8 sale deed. Item Nos.8 was also purchased by 1stdefendant and all the properties stand in the name of 1st defendant. Exs.B-9to B-11 pattas and Ex.B-13 kist receipt are also in his name. Item No.l1 waspurchased by the mother of the 1st defendant and after her death, the 1stdefendant got the property as her heir. It is not ancestral property. Theabove documents clearly show that the 1st defendant had purchased items 1 to5, 8 and 12 in his own name. The 1st defendant mortgaged item No.1 toSambanathan as per Ex. B-41 and under Ex.B-42 he has discharged the mortgagedebt. From the above documents, it is clear that 1st respondent himselfpurchased the suit items and was in enjoyment thereof.

10. Defendants 2 and 3 have purchased the property in item No.6

out of their own income. They have let in evidence to show that they werehaving independent income. Admittedly, the plaintiff was employed in ForestDepartment and got married in the year 1961 and was living separately with hiswife. There is no evidence adduced by the plaintiff to show that hecontributed money towards the purchase of any of the above properties. In histestimony as P.W.1, the plaintiff has admitted that he has constructed a houseof his own and that is not included in the suit property. Defendants 2 and 3have shown that they purchased item No.6 out of their separate earnings.

11. The other item is item No.9 and it was purchased by Annapoornammal, the mother of the plaintiff and defendants 2 to 4, underEx.B-33. The plaintiff as well as defendants 2 to 4 claim that the propertywas purchased in the name of mother as benami. Annapoornammal died in theyear 1976. Though the plaintiff claims that the above purchase by the motheris a benami transaction, he has failed to prove the same. The courts beloware right in concluding that item No.9 should be treated as property ofAnnapoornammal. Admittedly, item No.7 is the Sridhana property of motherAnnapoornammal. From the evidence on record, it can be safely concluded thatthe suit properties are not joint family properties as contended by theplaintiff and as rightly held by the courts below.

12. Defendants 2 to 4 claim the properties of the 1st defendant based on Ex.B-45 registered Will executed by him on 17.5.1978. For provingthe Will, defendants have examined D.W.2, who is said to be the attestor tothe Will. D.W.2 Veerasamy is a resident of Illalur Village where the deceased1st defendant owned lands. He is aged 74 years and is a temple archaka byprofession. According to D.W.2, the Will was written at the house ofRathinasabapathy in Tirupporur and the 1 st defendant affixed his thumbimpression in the last page and 'kiral' in other pages. Mr.T.R.Rajaraman,learned counsel for the appellant, contended that the signatures of thetestator and the attestors are not identified and the Will is not proved asrequired under Section 63 of the Indian Succession Act and he relied on thedecision of this Court in Govindan Chettiar, etc. vs. Akilandam @Seethalakshmi and 24 others, reported in 1997-3-L.W. 673. In the abovedecision, S.S. Subramani,J has held that when the signatures of the testator and the attestors are not identified, it cannot be said that the Will isproperly proved.

13. In the present case, it has to be seen as to whether the legal requirements under Section 63 of the Indian Succession Act are compliedwith. D.W.2 has stated that at the time of execution of Ex.B-45 Will,Rathinasabapathy gave the pen to the 1st defendant and the 1st defendanttouched the pen which was seen by him and the other witness Kothandam and'kiral' was made with identification and the 1st defendant put his thumbimpression since he could not sign due to hand shivering and he put hissignature as a witness and Kothandam also put his signature as other witness.The learned counsel for the appellant contended that the 1st defendant filedhis written statement in the suit on 20.4.1978 and in it he has signed andwithin a month Ex.B-45 is alleged to have come into existence, in which, onlyleft hand thumb impression is found and hence there is every suspicion astowhether the 1st defendant executed the alleged Will. It is true that Ex.B-4 5Will has come into existence within a month after the filing of writtenstatement by the 1st defendant. A perusal of the written statement filed bythe 1st defendant shows that 1st defendant had put his signature as well ashis left hand thumb impression in it. The signature in it appears very shakyand only because of that the 1 st defendant has taken care to put his lefthand thumb impression also in it. Hence it is clear that the 1st defendantwas not in a position to put his signature clearly at the time of filingwritten statement. D.W.2 categorically states that the hand of the 1stdefendant was shivering due to old age and he could not sign and hence heaffixed his thumb impression in EX.B-45 Will in his presence. There is nosuspicious circumstance in it as contended.

14. The learned counsel for the appellant pointed out some sentences in the cross-examination of D.W.2 and contended that the Will is notproperly proved. The testimony of a witness has to be looked into as a wholefor the purpose of appreciation. D.W.2 has specifically stated that he signedas a witness in Ex.B-45 Will and he and the other attesting witness saw the1st defendant touching the pen when the ' kiral' was made and they attestedthe Will at that time and the Will was registered next day at the Registrar'soffice. D.W.2 is an independent witness and his evidence is natural,convincing and trustworthy and deserves acceptance. From his testimony, it isclear that the legal formalities stipulated under Section 63 of the IndianSuccession Act have been satisfied and the contention raised by the learnedcounsel for the appellant in this regard is devoid of merit.

15. There are no suspicious circumstances regarding the execution of the Will. The 1st defendant contested the claim of the plaintifffor partition on the ground that the properties are self-acquired properties.In Ex.B-45 Will, the 1st defendant has stated that he got employment for theplaintiff in the Forest Department and after marriage, the plaintiff isresiding separately and he has acquired properties and there is no help to thefamily from him and whereas defendants 2 to 4 are living with him andmaintaining him and hence he is bequeathing his self-acquired properties tothem in equal shares. The testator has thus stated the reasons fordisinheriting the plaintiff in so far as his self-acquired properties areconcerned.

16. The learned counsel for the respondents contended that the plaintiff never contested Ex.B-45 Will, pleading its invalidity when thedefendants had propounded the Will in their additional written statement andeven during the oral testimony of witnesses examined by the defendants,nothing was put to the witnesses about the correctness of the Will and hencethe Will has been proved and she relied on the decision of the Supreme Courtin P.P.K.Gopalan Nambiar vs. P.P.. Balakrishnan Namibar and others, reportedin 1995(2) MLJ (SC) 87. The Apex Court, in the above decision, held asfollows.

Conclusion

"4. ........ Admittedly, the will was executed and registered on 1.11.1955 and she died 8 years thereafter in the year 1963. When the appellanthad propounded the will in his written statement, nothing prevented either therespondent or any of the contesting defendants to file a rejoinder i.e.,additional written statement with leave of the court under O.8, Rule 9pleading the invalidity of the will propounded by the appellant. Nothing hasbeen stated in the pleadings. Even in the evidence when the appellant wasexamined as D.W.1 and his attestor was as D.W.2, nothing was stated withregard to the alleged pressure said to have been brought about by theappellant to execute the will. In the cross-examination by the firstrespondent, no attempt was even made to doubt the correctness of the will.5. Under these circumstances, the suspicion excited the mind of theDistrict Munsif is without any basis and he picked them from his hat withoutfact-foundation. The Subordinate Judge had rightly considered all thecircumstances and upheld the Will. The High Court, without examining theevidence, by merely extracting legal position set out by various decisions ofthis Court has upset the finding of the fact recorded by the Subordinate Judgein one sentence. It is trite that it is the duty of the propounder of thewill to prove the will and to remove all the suspected features. But theremust be real, germane and valid suspicious features and not fantasy of thedoubting mind."

17. In the present case, defendants 2 to 4 filed additional written statement on 19.2.1983, in which they have propounded Ex.B-45 Willexecuted by the 1st defendant. The plaintiff has not chosen to file any replystatement pleading the invalidity of the Will. Nothing has been stated in thepleadings. In his testimony, P.W.1 states he knew about the Will executed byhis father after filing of the suit and in the Will the father has bequeathedhis properties on defendants 2 to 4 and has directed 1/4th share to be givento him in the properties of his mother. Even in the cross examination ofD.W.1 and D.W.2, no attempt was made by the plaintiff to doubt the correctnessof the Will. In such circumstances, there are absolutely no suspiciousfeatures in the execution of Ex.B-45 Will and there is enough evidence toconclude that Ex.B-45 Will was executedby the 1st defendant in a sound state of mind and the Will is true, legal andvalid. The substantial questions of law are answered accordingly.

18. In view of the above finding, the plaintiff is not entitled to any share in the properties stood in the name of the 1st defendant as wellas defendants 2 to 3. It is already decided that item Nos.7 and 9 belonged tothe mother of the plaintiff, namely, Annapoornammal and after her demise, theplaintiff is entitled a share in those properties alone, as legal heir and the conclusion of the lower appellate court is correct and no interference iscalled for. As per the amended plaint, the plaintiff is entitled to 1/3rdshare in Item Nos.7 and 9. There are no merits in the cross objection filedby defendants 2 and 3.

19. In the result, the appellant/plaintiff is granted apreliminary decree for partition with regard to his 1/3rd share in item Nos.7and 9 in the 'A' schedule of the suit properties and the judgment and decreeof the lower appellate court is modified accordingly. The second appeal isallowed to the extent indicated above. Cross Objection is also dismissed. Inthe circumstances of the case, there shall be no order as to costs.

Index:yes.Internet: yes.gb.

To:

1. The District Judge,Chengalpattu.

2. The District Munsif,Chengalpattu.

3. The Record Keeper,V.R.Section, High Court,Chennai-104.