IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04/09/2002
CORAM
THE HONOURABLE MR.JUSTICE V.KANAGARAJ
A.S.NO.13 OF 1991
1.Danusu
2.Sait @ Panchanathan
3.Pargunam
4.Janakiammal
5.Sudekshanan .. Appellants
-Vs-
1.Chandrakesu
2.Pandian
3.Sambandan
4.Thangamani
5.Vasugi .. Respondents
Appeal Suit filed against the judgment and decree of the Subordinate
Judge, Cuddalore dated 27.11.1990 and made in O.S.No.186 of 1889.
!For Appellants : Mr.K.Kannan
^For Respondents 1 to 3: Mrs.P.Hema Sampath
For Respondents 4 &5 : Mr.A.Sivaji.
:JUDGMENT
The above Appeal Suit is directed against the judgment and
decree dated 27.11.1990 made in O.S.No.186/89 by the Court of Subordinate
Judge, Cuddalore, thereby, the trial Court in a suit for partition filed by
the respondents No.1 to 3 herein has concluded that the suit properties are
joint family properties available for partition and granting such other
reliefs thus partly allowing the suit passing a preliminary decree.
2. Tracing the history of the appeal coming to be preferred it comes
to be known that it is the respondents 1 to 3 herein who filed the suit for
partition and separate possession of plaintiffs’ 30/63 shares in the
properties and for plaintiffs’ share of the future income from the properties
to be determined and for costs. The appellants 1 to 3 herein and the
respondents are brothers and sisters. The fourth appellant is the mother of
the appellants 1 to 3 and respondents 1 to 5. The fifth appellant is the
first appellant’s son.
3. The plaint averments are that the suit properties are ancestral
properties; that the appellants 1 to 3 and respondents 1 to 3, along with
their father Krishnaswami Gounder constituted a Hindu undivided family
enjoying the properties in common; that on 22.7.1988, the father died and the
first appellant, as the eldest member of the coparcenary was in management;
that some properties were purchased in his name as he was the eldest son; that
in the middle of 1987, the father took ill and he could not speak or move
about; that on 20.6.1988, under the pretext of taking him to a doctor, the
appellants seem to have fabricated a Will; that the father was weak and was
not able to comprehend anything; that the Will has totally disinherited the
respondents; that the 4th respondent at that time was a widow in stringent
circumstances and the 5th respondent was a totally blind woman living in a
blind school; that the father was affectionate to all his children; that the
recital in the Will that the daughters were well settled was false; that the
father was not in a sound and disposing state of mind; that he could not also
dispose of the entire property; that the Will is void and that on Krishnaswamy
Gounder’s death the sons are entitled to a 1/7th share each plus a 1/6th share
each in the father’s share, totaling to 30/63 each; that since the properties
are ancestral properties the 4th respondent is entitled to an equal share
along with her brothers. The fifth respondent herein remained ex parte.
4. According to the appellants 1 to 4 herein, the family had only 16
cents in S.No.191/5 (now S.No.13/8) described as item 8 in the plaint
schedule; that the father purchased properties with help from the family of
his first wife Janagammal; that her mother and two sisters stayed with
Krishnaswamy Gounder who purchased properties out of the funds provided by his
mother-in-law; that the purchases were gradual and not out of income from the
ancestral nucleus; that the first appellant helped him in agriculture; that
suit items 4,5,6 and 19 were settled on the first respondent by a registered
deed dated 7.10.1987; that the remaining items were disposed of by the Will
dated 17.6.1988; that there was nothing unnatural about the Will; that the
reason for disinheriting his daughters was because the fifth respondent a
widow, had been given properties by her husband and the 4th respondent, though
blind was employed; that the respondents 1 to 3 herein have to share the
repayment of family debts. This written statement of D1 to D4 has been
adopted by 7th defendant.
5. The 6th defendant would file a separate written statement to the
effect that the suit properties are ancestral and managed by their father;
that this defendant is blind and she is entitled to inherit equal share being
the daughter of late Krishnaswamy Gounder, and that this defendant is willing
for partition if she is given equal share in the suit properties.
6. Based on the above pleadings the trial Court would frame the
following issues namely:
(i)Whether the plaintiffs are entitled to partition and separate possession of
30/63 shares?
(ii)Whether the Will is true? If so, whether it is binding on the plaintiffs?
(iii)Whether the suit properties are joint family properties?
(iv) Whether the plaintiffs are entitled to discharge the family debts?
(v)Whether the suit is bad for joining the unnecessary parties?
(vi)What relief the plaintiffs are entitled to?
7. The trial Court conducted a full trial in which the
plaintiffs besides examining P.Ws. 1 to 3 for oral evidence would also mark
exhibit A1 dated 22.7.1988 an invitation card, for documentary evidence.
Likewise on the part of the defendants, besides examining D.Ws. 1 to 7 would
mark exhibits B1 to B39 for documentary evidence.
8. In consideration of the oral and documentary evidence, the
learned Additional Subordinate Judge, Cuddalore would pass a preliminary
decree for partition and separate possession allotting 3/7 shares in favour of
the plaintiffs, further remarking that the other relief for mesne profits
would be decided in a separate proceeding. Aggrieved, the appellants have
come forward to prefer the above Appeal suit on certain grounds as put forth
in the memorandum of appeal.
9. During arguments, the learned counsel appearing on behalf
of the appellants would submit that the defendants 1 to 4 and 7 are the
appellants herein; that the plaintiffs are brothers and they sought for 30/63
shares from out of the suit property; that according to them after the death
of their father, his share devolved on sons and daughters; that only item 8
with 15 cents of land is productive; that the trial Court passed a preliminary
decree allotting 3/7 shares in favour of the plaintiffs, further directing
them to be put in separate possession of the same; that all the suit
properties were purchased by their father after 1946; that their father’s
mother-in-law Rathinammal was gifted certain properties by her husband
Muthusamy Gounder; that for the sale deeds dated 1.8.1945 and 13.8.1945 the
moneys were realised by Rathinammal; that all the acquisitions of the
properties are by purchase; that as far as joint family nucleus is concerned,
the only contention is that his mother-in-law presented with the property;
that there is no document to show the same; that there is no plea also to show
self earning; that in the year 1945 all the parties were young; that the
family is admittedly a very large family; that one of the daughters is blind
and in the blind school; that the first plaintiff’s sons are well settled and
married; that the onus of proof of the existence of undivided joint family is
heavily on the plaintiffs and it never shifts on the defendants that they have
to prove. At this juncture, the learned counsel would cite a judgment of this
Court delivered in T.K.KAMALA AND OTHERS vs. A.R.THULASI RAO reported in 200
2(I) MLJ 382 wherein it has been held:
“There can be a presumption that the family continues to be joint, but there
cannot be any presumption that the property possessed by the family should be
a joint family property.”
10. Further arguments of the learned counsel is that the Will is
unacceptable; that the first plaintiff’s sons are well settled and married; in
respect of 1/7th share the Will is operated; that the mother has been examined
as P.W.3 at 1996. At this juncture the learned counsel would cite two
judgments the first one delivered in K.SENGODAN v. K.DHARMALINGAM AND OTHERS
reported in (1995)1 MLJ 336 and the 2nd one delivered in MUNIAPPA NAICKER v.
BALAKRISHNA NAICKER reported in 19 98-2 L.W.259.
11. Citing Order 41 Rule 33 C.P.C. the learned counsel would point out that
the appellate Court has power to pass any decree or make any order which ought
to have been passed or made and to pass such further or other decree or order
as the case might require.
12. In reply, the learned counsel appearing on behalf of the
respondents 1 to 3 would submit that the said Krishnaswamy had three sons and
two daughters; that from among the daughters one is blind and the other is
widow; that while such being the conditions of the daughter it is totally
unacceptable that the father executed the Will in favour of D1 the eldest son;
that the attestor of the Will is the wife; that approaching from that angle,
the trial Court has held that the father executed the Will in favour of the
first defendant as the eldest son; that what the trial Court says is that the
father could only bequeath his 1/7 share by way of Will and not the entire
properties; that in respect of 1/7 share the Will operates; that it has been
executed in a garden at Cuddalore Sub-Registrar’s Office; that Will is not as
any other document and it has to be proved strictly.
13. From out of the two judgments cited by the learned counsel
appearing on behalf of the appellants, the first one by a Division Bench of
this Court and the second one by a learned single Judge. In the first
Division Bench Judgment reported in 1995(1) MLJ 336 (supra) it is held:
“It can, however, not be denied that the initial burden is only on the one who
contends that the property belongs to an undivided Hindu family, and only
where the initial burden is discharged by the one who is setting up such a
claim, then the other side who contends to the contrary be called upon to
establish his case. The law on the subject has never been in doubt. The
appellant has failed to prove the existence of such ancestral nucleus which by
itself, is not sufficient but availability of the ancestral nucleus or its
adequacy of the same to fund the later acquisitions, are also essential
requisites for an answer in favour of his contention.”
14. So far as the 2nd judgment is concerned, it is reported in 1998-2
Law Weekly 259 (supra) it is held:
“On the basis of the law declared in the various Texts as well as case-laws,
the following propositions emerge:- (1) A Hindu Family is presumed to be
joint. But at the same time, there is no presumption that the joint family is
possessed of family properties. (2) The manager, if he is in possession of
family properties and is in management thereof and acquires any other
property, the law presumes that it is joint family property. (3) Even in such
cases, presumption will arise only if it is shown that the family property had
left surplus income out of which other properties could be acquired. If the
nature and relative value of the property are such that there is no income,
any fresh acquisition cannot be treated as a family property. It is well
within the powers of the members of the family that they can acquire separate
properties and can have their own avocations in life.”
15. On the part of the respondents they would also cite from
the decided cases of this Court and the Hon’ble Apex Court. The first one
being a judgment of a Division Bench of this Court reported in PONNUSWAMY v.
MEENAKSHI AMMAL AND OTHERS (1989-2 L.W.227), wherein it is held:
“It is to be noted that in cases where it is established or admitted that
family possessed some joint property which from its nature and relative value
may have formed the nucleus from which the property in question may have been
acquired the presumption arises that it was joint property and the burden
shifts to the party alleging selfacquisition to establish affirmatively that
the property was acquired without the aid of the joint family.”
16. The second judgment is that of a single Judge of this Court
reported in GOVINDAN CHETTIAR ETC. v. AKILANDAM ETC. & OTHERS (1997-3 L.
W.673) wherein it is held:
“Deceased was aged nearly 90 years at that time. The Sub Registrar’s
Office is far away from his residence. Whether the formalities to be complied
with in the Sub-Registrar’s Office were made known to the testator, and
whether he was aware that he was executing a Will, is not clear, and the
evidence of the Sub-Registrar is also lacking in this case. Whether the
Sub-Registrar really discharged his official duty in accordance with law is
also not in evidence. The Will is also executed on stamp papers, which is
unnecessary. The stamp papers were also purchased a few days prior to the
purported execution. Why the stamp papers were purchased in the name of first
defendant/the propounder/legatee stands unexplained. It is not the case of
the first appellant that they have no other relations so that they could be
attestors. The attestors are none other than his (first defendant’s) business
associates…. The signature appearing in the Will also seems to be very
shaky, and whether the deceased would have affixed his signature while he was
in his proper senses itself is doubtful. Evidence regarding the same is not
satisfactory. The signature in each and every page appears to be different,
and from the way in which they are affixed, an impression is created that they
might not have been put by a person having full mental capacity.”
17. The third judgment which is of the Full Bench of the
Hon’ble Apex Court reported in H.VENKATACHALA IYENGAR v. B.N.THIMMAJAMMA AND
OTHERS (1959)SCJ 507) wherein it is held:
“There may however be cases in which execution of the will may be
surrounded by suspicious circumstances. The alleged signature of the testator
may be shaky and doubtful and evidence in support of the propounder’s case
that the signature in question is the signature of the testator may not remove
the doubt created by the appearance of the signature: the condition of the
testator’s mind may appear to be very feeble and debilitated: and evidence
adduced may not succeed in removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made in the will may appear to be
unnatural, improbable or unfair in the light of relevant circumstances; or,
the will may otherwise indicate that the said disposition may not be the
result of the testator’s free will and mind. Such case the Court would
naturally expect that all legitimate suspicions should be completely removed
before the document is accepted as the last will of the testator. The
presence of such suspicious Circumstances naturally tends to make the initial
onus very heavy; and unless it is satisfactorily discharged, Courts would be
reluctant to treat the document as the last will of the testator. It is true
that if a caveat is filed alleging the exercise of undue influence, fraud or
coercion in respect of the execution of the will propounded, such pleas may
have to be proved by the caveators: but even without such pleas circumstances
may raise a doubt as to whether the testator was acting on his own free will
in executing the will, and in such circumstances it would be a part of the
initial onus to remove any such legitimate doubts in the matter.”
18. The fourth judgment is of the Full Bench of the Madras
High Court reported in SUBRAMANIAN v. SINNAMMAL (A.I.R.1930 MADRAS 801)
wherein it is held that “the plaintiff, dissatisfied with decree, appealing –
In proper case appellate Court can dismiss plaintiff’s suit in toto though
respondent has not preferred cross-appeal or memorandum of objections.”
19. The last judgment cited on the part of the learned
counsel for the respondents is one reported in KOKSINGH v. DENKABAT
(A.I.R.1976 (SC) 634)wherein it it held:
“The appellate Court shall have power to pass any decree and make any
order which ought to have been passed or made and to pass or make such further
or other decree or order as the case may require, and this power may be
exercised by the Court notwithstanding that the appeal is as to part only of
the decree and may be exercised in favour of all or any of the respondents or
parties, although such respondents or parties may not have filed any appeal or
objection:”
20. Assessing the facts and circumstances of the appeal, in
the light of the position of law governing the subject and the evidence
adduced before the trial Court and the appreciation of the same, it must be
mentioned that it is a suit paramountly for decision on two points which have
to be decided legally and on facts of the case, even though it cannot be said
that the other issues involved in the case are less important, but so far as
the case in hand is concerned, once answer is obtained for the following
points 1 and 2, it is very easy to settle the other points involved in the
whole of the appeal and therefore the following points are framed for
determination of all the questions that are involved in the whole of the
appeal suit:
(1)Whether the suit properties are ancestral or self-acquired in nature so far
as the father of the plaintiffs and defendants 1 to 3 and 5 and 6 and the
husband of the 4th defendant viz.late Krishnasamy Gounder is concerned?
(2)Whether the Will dated 17.6.1988 said to have been executed by Krishnasamy
Gounder in favour of defendants 1 to 4 giving life estate to the fourth
defendant, wife of Krishnasamy Gounder and thereafter conferring absolute
right to the defendants 1 to 3 alone, is true, valid and binding on the
plaintiffs and others?’
(3)Whether the trial Court is right in arriving at the decision as it has
arrived at?
(4)What relief, if any, the appellants are entitled to?
21. A careful perusal of the judgment of the lower Court
would show that the lower Court has not only traced the facts pleaded on the
part of the plaintiffs and the defendants but also has framed proper issues
numbering six including the above two main issues which are essential to
decide the case of such nature as it is one in hand.
22. Looking into the evidence adduced by parties, so far as
the oral evidence of the plaintiffs is concerned, the third plaintiff besides
examining himself as P.W.1 would also examine two other witnesses as P.Ws.2
and 3, who are from the local area. P.W.1 would adduce evidence adhering to
the pleadings of the plaint that the suit properties are ancestral; that their
father passed away on 22.7.1988 leaving behind him the plaintiffs and
defendants 1 to 6 as his legal heirs whereas their father was entitled to only
1/7th share from out of all the properties since the plaintiffs, defendants 1
to 3 and their father were the co-parceners of the Hindu undivided family all
equally becoming entitled to a share in the suit properties; that Ex.B.16 Will
dated 17.6.1988 was not voluntarily executed by their father but was made up
by the first defendant with the help of other defendants and a make believe
document artificially prepared when their father Krishnasamy Gounder was
ailing and not having clean disposing state of mind and therefore it is not
binding on them. Moreover, since the suit properties are ancestral, their
father did not have the locus standi to execute the Will regarding all the
suit properties whereas he was entitled to 1/7th of the same and therefore
would ultimately pray to pass the decree as prayed for in the suit. In the
said process, P.W.1 would also speak about all other parties and as to how the
properties were acquired from the ancestral nucleus in the name of their
father and the first defendant. He would also adduce evidence to the status
of defendants 4 to 6.
23. So far as the evidence of P.Ws.2 and 3 are concerned,
their evidence is short and precise to the effect that they know the late
Krishnasamy Gounder and that for 3 to 5 months prior to his death, he was not
keeping good health and was not able to move around himself without the
assistance of others and all the plaintiffs and defendants were living as one
and the same family contributing to the earning and welfare of the family.
These witnesses by and large would withstand the cross-examination so far as
the stand taken by them is concerned.
24. So far as the documentary evidence adduced on the part of
the plaintiffs is concerned, the sole document marked as Ex.A.1 is the card
announcing the 13th day death ceremony of late Krishnasamy Gounder and nothing
else.
25. On the part of the defendants/appellants herein and
others, 7 witnesses would be examined for oral evidence, the 6th defendant as
D.W.1, the first defendant as D.W.2, the 4th defendant as D.W.3, one
Ranganathan as D.W.4, one of the attestors of Ex.B.16 Will viz. Kalivaradan
as D.W.5, the scribe of the Will as D.W.6 and yet another Manavalan who is a
clerk in the Agricultural Cooperative Society as D.w.7.
26. So far as D.Ws.1 to 3 are concerned, they would confirm
Ex.B.16 Will to be true and valid and genuinely executed by late Krishnasamy
Gounder giving details such as that the Will was executed at their residence
by Krishnasamy Gounder; that D.W.6 being the scribe and D.W.5 and yet another
Vadivel as the attestors and they both witnessed the executant signing the
said Will. D.W.7 would give the details of one loan obtained by Krishnasamy
Gounder in the Cooperative Society but the details of other loans obtained by
Krishnasamy Gounder in the Cooperative Society he could not readily offer but
would say that only after seeing the ledger concerned with those loans, which
he had not brought to the Court, he could speak of the other loans.
27. Regarding the documentary evidence, 39 documents would be
marked on the part of the defendants as Exs.B.1 to B.39, Ex.B.1 is the
settlement deed dated 18.4.1910 executed by one Muthusamy Gounder in favour of
his third wife Rathnammal, Ex.B.2 dated 1.9.1945 is the sale deed executed by
Krishnasamy Gounder in favour of one Appasamy Bhaktar, Ex.B.3 is yet another
sale deed executed by Krishnasamy Gounder in favour of Chettiar Gounder dated
13.8.1945, Ex.B.4 dated 17.11.1945 is a sale deed executed in favour of
Krishnasamy Gounder, Ex.B.5 dated 11.6.1955 is yet another sale deed in favour
of Krishnasamy Gounder, Exs.B.6 to B.11 respectively dated 12.3.1966,
5.8.1968, 25.6.1969, 20.1.1969, 23.1.1970 and 30.1.1973 are the sale deeds;
Ex.B.12 dated 27.6.1977, Ex.B.13 dated 6.2.1978 and Ex.B.14 dated 22.7.1987
are the sale deeds executed in favour of the first defendant by different
parties; Ex.B.15 dated 7.10.1987 is the settlement deed executed by
Krishnasamy Gounder in favour of the first defendant, Ex.B.16 dated 17.6 .1988
is the last Will dated 17.6.1988 executed by Krishnasamy Gounder in favour of
defendants 1 to 4; Ex.B.17 dated 17.9.1985 is the certified copy of the
judgment delivered in O.S.No.104 of 1983 by the Court of District Munsif,
Cuddalore; Exs.Bd.17 to B.23 are the entries effected in the Cuddalore
Assembly and Parliamentary Constituencies Voters List; Exs.B.24 to B.26 are
the receipts issued in favour of the first defendant; Ex.B.27 is a letter
addressed to the first defendant by the Cooperative Bank; Ex.B.28 is the reply
from UCO Bank to the first defendant; Exs.B.29 and B.30 are the letters from
Indian Overseas Bank; Ex.B.31 dated 11.1.1985 is a legal notice issued to the
first defendant; Exs.B.32 to B.34 are the letters from Indian Overseas Bank to
the 7th defendant; Ex.B.35 dated 20.10.1989 is a letter for loan; Ex.B.36 is a
bill, Ex.B.37 dated 25.9.1931 is a settlement deed executed in favour of
Rathnammal by Muthusamy; Ex.B.38 dated 3.10.1941 is the sale deed executed in
favour of Krishnasamy Gounder and others and Ex.B.39 dated 13.7.1946 is a sale
deed in favour of a third party.
28. The lower Court while analysing the third issue viz.
`whether the suit properties are the ancestral properties’ and assessing the
evidence adduced by P.W.1 and D.W.1 and the manner in which the properties
have been purchased in the name of the deceased Krishnasamy Gounder and the
first defendant wherein regarding those properties purchased in the name of
the first defendant i.e. Item No.11 in Ex.B.12, Items No.14 and 15 in Ex.B.13
and Item No.12 in Ex.B.14, the first defendant, as D.W.2, would adduce
evidence to the effect that the Will properties are with the 4th defendant,
his mother, who is getting the income from them and the income from other
properties is being collected by him; that for the properties purchased in his
favour, he paid the sale consideration by selling his wife’s jewels and
getting loan from his father-in-law. Likewise, P.W.1 would also adduce
evidence to the effect that the properties are under the control of his eldest
brother and he is doing agriculture; that they were all living jointly before
their marriages and after their marriages, they started living separately;
that the entire show of the family was run by the first defendant. The lower
Court would find that for 7 or 8 years, the plaintiffs were living separately.
The lower Court would also find from the evidence of P.W.2, the first
defendant, that from the year 1982 onwards, the plaintiffs were living
separately, the first plaintiff in Item No.18 and the second and third
plaintiffs in the properties purchased in the name of the first defendant and
therefore easy conclusions have been arrived at by the lower Court offering
the reason that if really the first defendant had purchased those properties
from out of his self-earning or sources, he would not have allowed the second
and third plaintiffs to occupy those places for the residential purposes and
therefore would conclude that those properties purchased in the name of first
defendant were joint family properties; that it is also evident that for 16
years, even during the lifetime of their father, the first defendant was
managing the entire family affairs and therefore, no doubt would be
entertained by the lower Court to arrive at the conclusion that the suit
properties were ancestral and not self-acquired either by father or by the
first defendant.
29. Coming to the second issue pertaining to Ex.B.16 Will,
dated 17 .6.1988 said to have been executed by Krishnasamy Gounder in favour
of the defendants 1 to 4, since already it had been decided that the suit
properties were joint family properties where Krishnasamy Gounder also became
entitled to 1/7th share in all, he was at liberty to execute the Will
regarding his 1/7th share in the whole of the suit properties in favour of
anyone. However, basically it has to be decided whether the Will had been
genuinely executed by late Krishnasamy Gounder or is it a made up or
make-believe document prepared in an orchestrated manner by the first
defendant with the help of the other defendants taking advantage of the age
and ailment of Krishnasamy Gounder at the time of execution of Ex.B.16 Will as
it is alleged on the part of the other side and it is the vital for decision.
30. So far as this aspect is concerned, the admitted facts
are that though Krishnasamy Gounder was in the nature of signing documents,
only his thumb impression has been affixed and he did not sign Ex.B.16 . From
the evidence of D.Ws.5 and 6, it could be ascertained that he was not able to
sign because of his old age and therefore his thumb impression had to be
affixed. A person who was so aged and not in a position to physically put his
signature might not necessarily be mentally alert as a normal human being and
mystery shrouds regarding the genuine execution of the Will by Krishnasamy
Gounder in Ex.B.16 especially in view of the evidence adduced on the part of
P.Ws.2 and 3 to the effect that for 3 to 5 months, he was not keeping good
health so as to take care of himself and that he died on 22.7.1988 exactly one
month and 5 days immediately after execution of Ex.B.16 and further in view of
the fact that he was lifted in a taxi (which was not the custom which was only
without going by bus as it had been in the normal circumstances) to sign the
Will in the Sub Registrar’s Office on the date of execution of the same and
P.Ws.5 and 6 also deposed that it was the first defendant who brought them and
that they have never earlier either scribed or attested any document executed
by Krishnasamy Gounder and therefore it is highly suspicious whether at the
time of execution of the said Will, the executor Krishnasamy Gounder was in a
clear disposing state of mind so as to validly execute the said Will and
paramountly it is up to the defendants to discharge in evidence the suspicious
circumstances that have crept into the execution of the Will which they have
not satisfactorily done.
31. Further there is absolutely no reason assigned either in
Ex.B.1 6 Will or in the evidence by P.Ws.1 to 3 as to why and for what reason
Krishnasamy Gounder executed the Will bequeathing the suit properties in
favour of only the defendants 1 to 4 and none else particularly ejecting the
plaintiffs who are also his sons and hence the suspicion grows more burdening
the defendants to cast off the same by tendering convincing and gratifying
reasons in which they have miserably failed. The surrounding circumstances of
all the events also would not suggest that Krishnasamy Gounder either had any
liking for these defendants or hatred for the plaintiffs or that the
plaintiffs have gained the displeasure of the executor by indulging in such
unpleasant things to him. When all these elements are missing and not
answered in any manner either in the pleadings or in evidence, the only
conclusion that could be arrived at by the Court regarding the Ex.B.16 Will,
pertaining to its coming into being or its contents, that since they had not
been established validity, it cannot be held validly executed by Krishnasamy
Gounder to the expectations of law. Therefore, even the reasons assigned on
the part of the lower Court to arrive at the conclusion that Krishnasamy
Gounder was capable of executing the Will regarding his 1/7th share in the
family property is unacceptable since the Will has not been proved in a legal
manner, as held by the legal propositions which have been widely brought forth
in the judgments cited on the part of the respondents herein, extracted supra.
Therefore, it is only prudent to conclude that the 1/7th share that was
belonging to deceased Krishnasamy Gounder was to be divided among the
plaintiffs and defendants 1 to 6 equally, which would alone serve the ends of
justice and the same is decided accordingly.
32. Since the main issues regarding the character of the suit
properties and the genuineness and validity of Ex.B.16 Will have been
determined in the manner aforementioned thus settling Issues No.2 and 3, which
are basic and essential, there is no difficulty in deciding the other issues
No.1,4,5 and 6 at all.
33. So far as the first issue `whether the plaintiffs are
entitled to partition and separate possession of 30/63 shares in the suit
properties’ is concerned, consequent to the conclusions arrived at to issues
No.2 and 3, it could only be answered that they are entitled to their shares
as decided supra. It is added that from out of the 1/7 th share that is
decided that the deceased father Krishnasamy Gounder had been entitled to, all
the plaintiffs and defendants 1 to 6 shall equally be entitled to a share,
needless to mention that defendants 5 and 6 are also each entitled to 1/9th
share from out of the 1/7th share of Krishnasamy Gounder. It is relevant to
add that even though one house site had been purchased in the name of the 7th
defendant, son of the first defendant, since it is also treated as a property
belonging to the undivided Hindu joint family consisting of the deceased
father, plaintiffs and the defendants 1 to 3 and from out of the father’s
1/7th share, the other defendants 4 to 6 also become entitled to 1/9th share
in it along with the plaintiffs and defendants 1 to 3, the properties
purchased in the name of the 7th defendant should also be decided in the same
manner as it has been decided herein. Needless to mention that the 7th
defendant, since being only a name lender and the purchase in his name since
being sham and nominal and for the benefit of the joint family, he would not
become entitled to any share in all the suit properties individually.
34. Regarding issue No.4 pertaining to the loans also, since
already the shares of parties have been decided while answering the first
issue, in accordance with the shares declared to be belonging to each one of
the plaintiffs and defendants 1 to 6, they are liable to clear the loans.
35. Coming to issue No.5, it is well decided by the lower
Court itself that the suit would not become affected by non-joinder of
necessary parties and the same is decided accordingly. The reasons assigned
by the lower Court since being valid, they are accepted by this Court also.
36. The sixth and the last issue `whether the plaintiffs are
entitled to any other relief’ is concerned, it could be decided that they are
entitled to only those reliefs which have already been answered while deciding
Issue No.1 and for all other legal benefits that they are entitled to in law
and nothing else.
In result,
(i)the above appeal suit fails and the same is dismissed;
(ii)the findings of the Court below holding that Ex.B.16 Will is valid and
binding, are set aside
(iii)It is declared that the plaintiffs, defendants 1 to 3 and the deceased
Krishnasamy Gounder are each entitled to an equal share in all the suit
properties including the properties purchased in the name of the 7th
defendant;
(iv)that the plaintiffs and defendants 1 to 6 are each entitled to a 1/9th
share in the 1/7th share of the properties allotted to Krishnasamy Gounder.
(v)The preliminary decree of the Court below is modified to the extent
indicated supra.
However, in the circumstances of the case, there shall be no
order as to costs.
Index: Yes
Internet: Yes
gr/Rao
To
The Subordinate Judge,
Cuddalore.