IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.09.2010 CORAM: THE HONOURABLE MS.JUSTICE R. MALA S.A.NO.246 of 2002 1. G.Raghuraman(died) 2. Vanaja 3. S.R.Surender 4. B.Sucharitha (Appellants 2 to 4 brought on record as L.Rs. Of the deceased sole appellant i.e. first appellant, vide order of Court dated 5.6.2007 made in C.M.P.No.999 of 2007) .. Appellants Vs. 1. Jegannatha Naidu 2. Rajendran 3. Venkat .. Respondents Second Appeal against the judgment and decree dated 27.9.2001 made in A.S.No.7 of 2001 on the file of the Subordinate Judge's Court, Mathuranthagam, against the judgment and decree, dated 27.11.2000 made in O.S.No.557 of 1993 on the file of the District Munsif Court, Mathuranthagam. For appellants : Mr.K.Chandrasekaran For respondent-1 : Mr.R.Balakrishnan For respondents 2 & 3 : No appearance JUDGMENT
The Second Appeal arises out of the judgment and decree, dated 27.9.2001 made in A.S.No.7 of 2001 on the file of the Subordinate Judge’s Court, Mathuranthagam, reversing the judgment and decree, dated 27.11.2000 made in O.S.No.557 of 1993 on the file of the District Munsif Court, Mathuranthagam.
2. The averments made in the plaint are as follows:
(a) The first respondent/plaintiff is the absolute and exclusive owners of the suit properties. He got the same under a registered Will executed by one Chengappa Naidu on 4.10.1938. The suit properties were acquired by Chengappa Naidu under a Sale Deed, dated 19.12.1944 and also from Lakshmi Ammal as legal heir. Chengappa Naidu was in possession and enjoyment of the same till his death in the year 1958. Thereafter, the first respondent/plaintiff is in possession and enjoyment. Patta has been transferred in his name and also he has been paying the kist. He dug up two Wells and also put up electric motor pump-set. The service connections stands in the name of the first respondent/plaintiff. He also dealt with the properties by way of mortgaging the same in 1972 with the Land Development Bank, Chithamoor and in 1993, he has also mortgaged with L.D.Bank, Madurantakam, to purchase a Tractor. The defendants are well aware of the same.
(b) It is stated by the first respondent/plaintiff that the defendants have no manner of right, title or interest over the suit properties. The first respondent/plaintiff is not claiming any interest over the properties of his natural father. Only the defendants are in possession of the said properties and they divided the same. The defendants were not in good terms with the plaintiff and were pressurising the Plaintiff to give share in the suit properties, but they are not entitled to share.
(c) Since the plaintiff refused to give his share, the defendants attempted to trespass into the suit properties and were also interfering with his possession, and hence, the plaintiff is constrained to file the suit for declaration of title to the suit properties and also for consequential permanent injunction restraining the defendants, their men and agents from in any way interfering with the plaintiff’s peaceful possession and enjoyment of the suit properties and also for payment of costs.
3. The gist and essence of the written statement filed by the first defendant, adopted by defendants 2 and 3, are as follows:-
(a) The first defendant is the own younger brother of the plaintiff. One Munusamy Naidu is the grand-father of the plaintiff. Munusamy Naidu had five sons and the last son is Gopalsamy Naidu. The said Gopalswamy Naidu had three sons. The elder son is Kamalanathan, who died in or about 1982 leaving behind his widow Banumathi and two sons, viz., Rajendran and Venkat, i.e., the defendants 2 and 3. The third son of Gopalasamy Naidu is Raguraman, who is the first defendant. Even during the life time of Kamalanathan, the estates were orally divided between the brothers. The plaintiff never enjoyed, nor owned the suit properties, much less as exclusive owner. The properties were divided in or about 1980 and at no point of time, the plaintiff has retained any separate property, much less as the adopted son. The entire estates are pooled together and division was made and the same was acted upon and came into force. Lot of improvements were made.
(b) The properties were also alienated and only out of such sale proceeds, the improvements were made. Most of the estates were allotted to the first defendant and sold out and out of such sale proceeds, the suit properties were improved. Only a negligible portion was alienated to the share allotted to the plaintiff. The division was made regarding all the properties, including the properties covered under the suit Will. Such division was made in open and to the knowledge of entire villagers, which was acted upon and came into force. The first defendant has incurred huge debts to dig a Well and laid pipelines in those lands and also a part of the Will property. The first defendant has taken such a Will in or about 1982. The motor pump-sets were also installed by the first defendant out of his own funds. It is stated by the first defendant that he has got the records for the same. Since the patta was in the name of the plaintiff, the service connection also was obtained in his name. The plaintiff never enjoyed the suit service connection, nor the suit Well. The alleged trespass is only a myth.
(c) Since the plaintiff has not come out with clean hands and suppressed the real facts, he is not entitled to any relief prayed for. The plaintiff has to prove the Will. There is no cause of action for the filing of the suit. The suit is also bad for non-joinder of necessary parties such as Banumathi and others. Even on the ground of equity and since the balance of convenience is in favour of the defendants, the suit is liable to be dismissed.
4. The trial Court, after considering the averments made both in the plaint and in the written statement, framed necessary issues for consideration. After perusing the oral and documentary evidence of P.Ws.1 and 2 and Exs.A.1 to A.47 and D.W.1 to D.W.3 and Exs.B.1 to B.31, dismissed the suit. Aggrieved by the judgment and decree of the trial court, the then plaintiff (deceased) preferred First Appeal in A.S.No.7 of 2001 on the file of the Subordinate Judge’s Court, Mathuranthagam. The first appellate Court, after considering the arguments advanced by counsel on both sides, framed necessary points for determination and after considering the additional evidence adduced in Exs.A-48 to 56 and Exs.B-32 to 34 and Exs.C-1 to C-7, which were marked based on the orders passed in the respective interlocutory applications, allowed the First Appeal and decreed the suit as prayed for in the plaint. Aggrieved by the same, the present Second Appeal has been preferred by the first defendant/first appellant, since deceased, and his legal heirs were brought on record before this Court as appellants 2 to 4.
5. At the time of admission of the above Second Appeal, the following substantial questions of law were framed for consideration:
“(i) Whether the first appellate court is correct in interpreting the Document Ex.A.1 as Will?
(ii) Whether the lower appellate court is right in decreeing the suit on the strength of Ex.A.1? and
(iii) Whether the lower appellate court is right in coming to the conclusion that the plaintiff is the adopted son of Chengappa Naidu?”
6. Learned counsel for the appellants/legal heirs of the deceased first defendant, would contend that the deceased first defendant is none other than the brother of the first respondent/plaintiff and they are the sons of Gopalsamy Naidu, who had three sons, namely, the first respondent-plaintiff Jagannatha Naidu, the deceased first appellant-first defendant Raghuraman and one Kamalanathan, who died intestate leaving behind his wife Banumathi and two children, who are defendants 2 and 3, namely Rajendran and Venkat. The first respondent-plaintiff is claiming his title on the basis of Ex.A-1 alleged Will/adoption deed. It is stated by the learned counsel for the appellants that Ex.A-1 is neither the gift deed/adoption deed, nor the Will and to prove the same, the attestor has not been examined before the Court. In the evidence alone, the first respondent-plaintiff pleaded that he is the adopted son of Chengappa Naidu. Learned counsel for the appellants further submitted that the first appellate Court committed error in invoking Section 90 of the Indian Evidence Act in respect of the proof of Ex.A-1 and to substantiate the same, learned counsel for the appellants relied upon the Apex Court judgments, to the effect that even if the Will is 30 years old, the concept of Section 90 of the Indian Evidence Act will not be applicable and the plaintiff ought to have proved the Will in accordance with Section 68 of the Indian Evidence Act or Section 63 of the Indian Succession Act, and to prove the adoption, the first respondent/plaintiff has not examined any one. It is the further contention of the learned counsel for the appellants that the first respondent-plaintiff never pleaded his adoption and only one statement has been mentioned in the plaint that “he was not claiming any property from his natural father”. Learned counsel for the appellants culled out some portions of the judgment of the first appellate Court and prayed for setting aside the same.
7. The respondents have all been served, but there is no personal appearance or through counsel for respondents 2 and 3 (defendants 2 and 3).
8. Learned counsel for the first respondent/plaintiff contended that Ex.A-1 is the Will as held by both the Courts below, and even though the nomenclature has been stated to be adoption deed, the recital is a matter to be considered, instead of the nomenclature and to substantiate this argument, he relied on the decision of the Supreme Court reported in 1996 (9) SCC 388 (Namburi Basava Subrahmanyam Vs. Alapathi Hymavathi). He further contended that Ex.A-1 is not a Will and it is only an adoption-cum-settlement deed and after the death of the adoptive father of the first respondent-plaintiff, the first respondent-plaintiff alone is entitled to the properties after attaining majority and though the trial Court dismissed the suit, the first appellate Court considered the same and came to the correct conclusion that the first respondent-plaintiff is the adopted son of Chengappa Naidu, even though the plaintiff is the natural son of Gopalsamy Naidu, and the plaintiff inherited the properties of the said Chengappa Naidu as a legatee/beneficiary under Ex.A-1, and therefore, the first appellate Court has considered this aspect in proper perspective and decreed the suit, and hence, learned counsel for the first respondent-plaintiff prayed for dismissing the Second Appeal, by confirming the judgment and decree of the first appellate Court.
9. The suit properties belong to Chengappa Naidu and one Lakshmi Ammal. The genealogy between the parties, is indicated below:
| (5 sons)
| | | | | Gopalsamy Naidu Appaji Veersamy Naidu Narayanasamy Naidu DuraisamyNaidu | | (died) | 2 sons | | | ---------------------- = | | Janaki (wife) Padmanabhan Devaraj | |(3 sons) |------------ -|---------------------| Jagannatha Raghuraman Kamalanathan (died) Naidu | (plaintiff) (D1) |= wife Banumathi | (2 sons) |--------------------------| Rajendran (D2) Venkat (D3) ------------------------------------------------------------------------------------------------------------------------------------- Genealogy II: Veerasamy Naidu | 2 sons | |------------------------------------| | | Chengappa Naidu Narayanasamay Naidu | | --------------------------------------- | = wife | | Lakshmi Ammal Jagannatha Naidu Janaki (adopted son)/plaintiff (daughter) | = husband Gopalsamy Naidu | 3 sons |------------ -|---------------------| Jagannatha Raghuraman Kamalanathan (died) Naidu | (plaintiff) (D1) |= wife (natural son) Banumathi | (2 sons) |--------------------------| Rajendran (D2) Venkat (D3)
10. Admittedly, the suit properties belong to Chengappa Naidu and Lakshmi Ammal. Lakshmi Ammal’s husband Narayanasamy Naidu, pre-deceased her and they had no children. Chengappa Naidu’s wife also pre-deceased him and they also had no children. As per the version of the first respondent-plaintiff, Chengappa Naidu adopted the first respondent-plaintiff Jagannatha Naidu as his son, i.e. adopted son and that has been evidenced by Ex.A-1. It is pertinent to note that Munusamy Naidu is having properties and that had been divided among the brothers, who are the sons of Munusamy Naidu, i.e. Gopalsamy Naidu and his brothers. Now, the dispute is not in respect of the properties of Gopalsamy Naidu, son of Munusamy Naidu, but the dispute is only in respect of the properties of Chengappa Naidu, the adoptive father of the first respondent-plaintiff.
11. The first appellate Court has considered has considered Ex.A-1 as a Will. At this juncture, it is appropriate to consider the argument advanced by learned counsel for the first respondent-plaintiff that even though the first appellate Court has come to the conclusion that Ex.A-1 is a Will, the nomenclature of the document Ex.A-1 is immaterial, but the contents of the same is only necessary to decide the nature of the document and in support of this contention, learned counsel for the first respondent-plaintiff relied on the decision of the Supreme Court reported in 1996 (9) SCC 388 (Namburi Basava Subrahmanyam Vs. Alapati Hymavathi). In this regard, it is appropriate to notice Ex.A-1, in which it is stated that, @///br’;fk eha[L vGjpitj;j !;tPfhug; gj;jpuk; vd;dbtd;why;//.//@/ So, according to the learned counsel for the first respondent/plaintiff, the nomenclature of Ex.A-1 is only in the form of adoption deed. But while perusing the contents of Ex.A-1, it is seen that it is not an adoption deed, because the natural parents of the adopted son, are not signatories to it. While perusing Ex.A-1 in entirety, it is further seen that the disposition of the properties had been mentioned. In Ex.A-1, it is further stated that the Chengappa Naidu has taken in adoption a child aged about 4 years, namely Jagannatha Naidu (first respondent/plaintiff), being the son of his natural father (Gopalsamy Naidu), in the presence of the relatives and friends as per the Hindu Law. The second part of the document Ex.A-1 states that all the properties belonging to Chengappa Naidu, are gifted to the adopted son/the first respondent/plaintiff, who was the minor and the said Chengappa Naidu, i.e. the executant himself, was to act as a guardian to the minor plaintiff and enjoy the properties on behalf of the adopted son/first respondent/plaintiff. In the other Clause of Ex.A-1, it is stated that if anything happens to Chengappa Naidu, the adopted son’s mother, being the daughter of the adoptive father, namely Janaki Ammal shall act as a guardian for the minor plaintiff and maintain the minor till he attains majority and after the minor attains majority, he is having every right to deal with the properties. The said Chengappa Naidu has given absolute right in the properties to the first respondent-plaintiff under Ex.A-1. Even one other Clause in Ex.A-1 mentions that if anything happens to the adopted son, the remaining grand-son through his daughter Janaki Ammal, namely Kamalanathan and the children born to Janaki Ammal, subsequently will take the properties equally.
12. The trial Court dismissed the suit stating that the first respondent/plaintiff has not proved that he is the adopted son of Chengappa Naidu and he is the owner of the properties. The first appellate Court considered Ex.A-1 as a Will and decreed the suit as prayed for, by allowing the First Appeal and setting aside the judgment and decree of the trial Court. In such circumstances, it is the duty of this Court to consider as to whether the document Ex.A-1 is a Will or adoption-cum-settlement/gift deed.
13. On a perusal of Ex.A-1, it is seen that the contents of the same are styled as an adoption-cum-settlement deed. In the earlier paragraph of Ex.A-1, it is stated that the adoption has taken place on the same day and on that day itself, the executant (Chengappa Naidu) executed the deed and stated therein that since the first respondent/plaintiff was a minor at the time of execution of Ex.A-1, Chengappa Naidu himself was to act as a guardian for the minor plaintiff Jagannatha Naidu, and to settle the properties to the first respondent/plaintiff.
14. Furthermore, learned counsel for the appellants/legal heirs of the deceased first defendant, submitted that even though the first appellate Court came to the conclusion that Ex.A-1 is a Will, it is to be noticed that the attestor of Ex.A-1 has not been examined before Court to prove the attestation and even though the document Ex.A-1 is dated 4.10.1938, the original of the same has not been filed in Court and only the registration copy of the same has been produced and it is not a 30-year old document. As per Section 90 of the Indian Evidence Act, no presumption can be invoked. To substantiate the same, learned counsel for the appellants/legal heirs of deceased D1, relied upon the decision of the Supreme Court reported in AIR 2009 SC 1766 = 2009 (3) SCC 687 (Bharpur Singh Vs. Shamsher Singh), in which, the Supreme Court observed as follows:
“15. This Court in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443) opined that the fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was also held that (AIR p.451, para 19) one of the important features which distinguishes a Will from other documents is that the Will speaks from the date of death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.
16. In H.Venkatachala case (H.Venkatachala Iyengar Vs. B.N.Thimmajamma–AIR 1959 SC 443), it was also held that the propounder of a Will must prove:
(i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and
(iii) if a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein. …..”
15. Relying on the abovesaid decision reported in AIR 2009 SC 1766, learned counsel for the appellants submitted that it is the duty of the propounder to prove the Will in accordance with law and as per Section 68 of the Indian Evidence Act and Section 63(c) of the Indian Succession Act, none of the attestors to Ex.A-1 had been examined. In such circumstances, learned counsel for the appellants contended that the first appellate Court committed an error in accepting that Ex.A-1 is a Will and is a true and genuine document. P.W.2 is one Veeraraghavan, and he is not an attestor to Ex.A-1 and he is only the son-in-law of the first respondent-plaintiff, and P.W.2 was only aged about 41 years at the time of his examination as a witness before Court and so,admittedly, no one has been examined to prove the alleged Will (Ex.A-1).
16. If the claim is made on the basis of the Will after a long time, the propounder should aver that the Will was acted upon, that the executor was in a sound and disposing state of mind and has duly attested and that it is the last Will and testament of the testator.
17. From Ex.A-51, it is seen that Kamalanathan and Raghuraman have given a statement on 5.8.1972 before the Manager of Chithamur Co-operative Land Development Bank that the properties in suit items 10, 13 and 14 and S.Nos.172/5 and 173/9 are the properties received by way of testamentary disposal, by stating that, @////nkw;fz;l brhj;ij & $fd;dhj eha[Lit mtUila jhj;jhthfpa br’;fg;g eha[L vd;gth; jj;J vLj;jjpd; K:yk; fpilj;jjhFk;/ Mfnt & rh;nt vz;fspy; v’;fSf;F ve;jtpj mf;Fghj;ija[k; fpilahJ/ Mfnt & fz;l brhj;ij <lhf itj;Jf; bfhz;L fld; bfhLg;gjpy; v';fSf;F ve;jtpjkhd Ml;nrgiza[k; fpilahJ////@, which means that they had no objection for granting loan by mortgaging the properties mentioned therein, since the properties mentioned therein have been inherited by the first respondent-plaintiff Jagannatha Naidu, through his adoptive father Chengappa Naidu. This also shows that the deceased first defendant and Kamalanathan have accepted the adoption and they were not claiming any right over the properties specified in Ex.A-51.
18. At this juncture, it is appropriate to consider the written statement filed by the first defendant, and adopted by defendants 2 and 3, in which, in page 2, the first defendant stated that the properties were divided in or about 1980 and at no point of time, the plaintiff retained any separate property much less as the adopted son and the entire estates are pooled together and division was made and the same was acted upon and came into force. As already stated, in his oral evidence, D.W.1 (D1) stated that the properties were not divided. Further, it is clearly proved that the intention of the brothers of the plaintiff, is that they are not claiming any title over the properties and they were never in possession, which has falsified the defence raised by the first defendant in respect of the blending with the other properties.
19. It is also pertinent to note that while perusing the entire file, it shows that the loan had been discharged by the first respondent/plaintiff, as seen from the Discharge Certificate, dated 21.12.1992. In Ex.A-54, the statement made by Gopalsamy before the Manager of the Chithamur Co-operative Land Development Bank, it is stated by Gopalsamy Naidu, as follows:
@vd;Dila ,uz;lhk; Fkhuuhd jpU/b$fehj eha[L vd;gth; 132 rpj;J}h; fpuhkj;jpy; cs;s rh;nt 165-5 5?16 brz;L epyj;ij <lhf fhz;gpj;J j';fs; t';fpapy; I.D.wh. jpl;lj;jpy; g[jpa fpzW nkhl;lhh; brl; th';f bc&l;L fl;l fld; nfhhp ,Ug;gJ vdf;F bjhpa[k;/ & epyk; kDjhuh; jfg;gdhUk; tPuhrhk;p eha[L Fkhuh; br';ifa;a eha[Lt[f;F re;jjp VJk; ,y;yhjjpdhy; & b$fehj eha[Lit !;tPfhu g[j;jpuuhf vLj;Jf; bfhz;L & epyKk;. ntW epy';fSk; 1938?y; vGjpitj;J mDgtpj;J tUfpd;whh;/ & epyj;Jf;Fk; vdf;Fk; ve;jptpjkhd ghj;jpaija[k;. chpika[k; fpilahJ vd;Wk; & epyj;ij j';fs; t';fpapy; <lhf itj;J bfhz;L fld; bfhLg;gjpy; vdf;F ve;jtpjkhd Ml;nrgiza[k; ,y;iy vd;W ,jd;K:yk; cWjp TWfpd;nwd;/@
20. Thus, it shows that the properties were inherited by the first respondent-plaintiff through his adoptive father Chengappa Naidu and neither his natural father Gopalsamay Naidu nor his children, i.e. first defendant and Kamalanathan, are having any right, title or interest over the properties, which is evidenced by Exs.A-51 and 54 extracted supra. It also shows that the first respondent/plaintiff inherited the properties as heir of the adoptive father Chengappa Naidu and that factum of adoption has been recognised by the natural father and blood brothers, as evidenced from Exs.A-51 and 54 and the defendants are estopped from questioning the validity of Ex.A-1.
21. Admittedly, the document Ex.A-1 is not a Will. At this juncture, it is appropriate to consider the decision relied on by the learned counsel for the first respondent-plaintiff, reported in 1996 (9) SCC 388 (Namburi Basava Subrahmanyam Vs. Alapati Hymavathi), wherein, it was held by the Supreme Court as follows:
“The nomenclature of the document is not conclusive. The recitals in the document as a whole and the intention of the executant and acknowledgement thereof by the parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document, or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole.
The document in this case (see para 3) described as ‘settlement deed’ was to take effect on the date on which it was executed. The settlor created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned thereunder. A combined reading of the recitals in the document and also the Schedule would clearly indicate that on the date when the document was executed she had created right, title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property in praesenti and vested the remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on the settlor’s demise. Thus the document in question could be construed rightly as a settlement deed but not as a Will. The settlor, having divested herself of the right and title thereunder, had, thereafter, no right to bequeath the same property in favour of her first daughter.”
22. Relying on the said decision reported in 1996 (9) SCC 388, learned counsel for the first respondent-plaintiff stated that even though in Ex.A-1, it is stated as @!;tPfhug; gj;jpuk;@ (adoption deed), the recitals in the document Ex.A-1 have to be read as a whole for gathering the intention and the nomenclature is not conclusive and the document described as settlement deed, which created right, title and interest in the properties with effect from the date of execution itself, but conferring the absolute right only after the death of the settlor, would amount to a settlement and not a Will. Though there is no quarrel over the said proposition laid down in the said decision reported in 1996 (9) SCC 388, while considering the said decision along with the document Ex.A-1, learned counsel for the first respondent/plaintiff contended that Ex.A-1 is only a settlement-cum-adoption deed and not a Will and to substantiate his contention, he relied on the recitals of Ex.A-1, which reads as follows:
@1938 tUc& mf;nlhgh; khjk; 4c ehd;F muf;nfhzk; jhY}fh guhh;”;rp kjhh; rpd;d nkhl;oypUf;Fk; fk;kFyk; tpc&;Qq kjk; kzpak; gaph; $Ptdk; bfhzpjiy tPuh!hkp eha[L Fkhuh; br’;fk eha[L vGjp itj;j !;tPfhug; gj;jpuk; vd;dbtd;why; vdf;F ,J tiuapYk; Mz; re;jjp ,y;yhjjpdhYk; vdf;F tpUj;ja;a fhykha; tpl;ljpdhYk; ,dpnky; vdf;F re;jjp cz;lhFbkd;fpw ek;gpf;if ,y;yhjjpdhYk; vdf;F ghj;jpag;gl;l !;j;jhtu $’;fk aht!;jh!;jpfisa[k; mDgtpf;ft[k; vdf;F gpw;fhyj;jpy; bra;antz;oa fh;kif’;fh;a’;Jd;Kjyhd rfy rl’;Ffis bra;at[k; vd;Dila Fkhuj;jp $hdfpak;khspd; 4tJ FkhuDk; vdf;F bjsj;jpuDkhd br’;fy;gl;Lo mr;rug;ghf;fk; rg;o 132 be $kPd; rpj;J}h; fpuhkj;jpypUf;Fk; fk;kFyk; gaph; $Ptdk; tpc;&Qqkjk; vdJ kUkfd; rd;w nfhghy;rhkp eha[L 4tJ Fkhud; ikdh; 4 taJs;s b$fd;dhj eha[L vd;gtid bgw;nwhh;fs; rk;kjg;go ,e;Jyhgpufhwk; ge;Jf;fshpa ,e;jg; gj;jpu Kd;dpiyf;F ,d;W !;tPfhuk; bgw;Wf; bfhz;nld;/ Mifahy; ,J Kjy; vdf;F ghj;jpag;gl;l ahtw;W!;j;jhtu $’;fk ahtjh!;jpfisa[k; vd; !;tPfhu Fkhud; b$fd;dhj eha[L vd;gtd; mile;J mDgtpj;Jf; bfhs;s ntz;oaJ ,g;nghJ vd; !;tPfhu Fkhud; ikduhapUg;gjhy; ehnd fhh;oadhfapUe;J rtuT;&id tifauh elj;jp tUfpnwd;/ vd; !;tPfhu Fkhud; ikdh; jpirapy; vd;fF mDTyk; nehpgl;lhy; vdf;F gpuF vd; !;tPfhu Fkhud; $dfjhapUk; vd; Fkhuj;jpa[khd $hdfpak;khs; fhh;oadhfapUe;J jhdk; <L Kjyhd vt;tpj ghj;jpaj;ijapy;yhky; vdf;F ghj;jpag;gl;l ahtj;Jr; brhj;Jf;fspd; Mjhag;gyidf;bfhz;L vd; !;tPfhu Fkhuid rtuT;&izr; bra;Jf; bfhz;L te;J vd; !;tPfhu Fkhud; nk$h; jpirapy; epuhnc&gkha; tpl;Ltpl ntz;oaJ/ vd; !;tPfhu Fkhud; a[f;j taJ te;jg; gpwF jhdhjptpdpka tpf;fpua';fSf;F ghj;jpaijaha; mDgtpj;Jf;bfhs;s ntz;oaJ/ vd; !;tPfhu FkhuDf;F ikdh; jpirapy; VjhfpYk; mDTyk; nehpgl;lhy; vd; n$c;&l bjsj;jpud; fkyeh eha[Lt[k; ,dp cz;lhFk; bjsj;jpuhDk; rkghfkhf mila ntz;oaJ/ ,g;nghJ vdf;F ghj;jpag;gl;l brhj;Jf;fSk; ,dp vdf;F fpilf;fk; brhj;Jf;fisa[k; vd; !;tPfhu Fkhund mila ntz;oaJ/ vd; !;tPfhu Fkhud; ikdh; jpirapy; ikdUf;F yhgfukha; VjhtJ ghpth;j;jid tpf;fpuak; bra;a neh;e;jhy; fhh;oad; Xjhtpy; ehStJ vd; Fkhuj;jp $hdfpak;khshtJ bra;Jf; bfhs;s ntz;oaJ vdf;F ghj;jpag;gl;ll ahtjh!;jpfSf;Fk; vd; jhahjpfSf;Fk; vt;tpj ghj;jpaKk; fpilahJ ,e;jg;gof;fp vd; uh$papy; vGjp itj;j !;tPfhug; gj;jpuk;////@
23. Relying on the above extract of Ex.A-1, learned counsel for the first respondent/plaintiff submitted that it is only a confirmation of adoption and settling the properties in favour of the adopted son of Chengappa Naidu. He further submitted that the first appellate Court, though wrongly construed Ex.A-1 as a Will, ultimately granted the decree of declaration as prayed for by the first respondent-plaintiff. So, the finding of the first appellate Court that Ex.A-1 is a Will, is hereby set aside.
24. So, the finding of the first appellate Court that Ex.A-1 is a Will, is liable to be set aside. But the document Ex.A-1 is only an adoption-cum-settlement deed and only in pursuance of the same, the first respondent-plaintiff is in possession and enjoyment of the properties. The deceased first defendant has also given a statement even in 1973, as noted above, in the additionally marked exhibit, but the suit has been filed only in 1993, i.e. only after two decades, the litigation started between the heirs. In such circumstances, the defence raised on behalf of the defendants is only an after-thought. Even though the first appellate Court granted a decree as prayed for in the plaint, it has committed an error in coming to the conclusion that Ex.A-1 is a Will, but the terms of Ex.A-1 clearly proved that it is only an adoption-cum-settlement deed. Even on a perusal of Ex.A-1, it is clearly proved that on the date of adoption, the adoptive father (Chengappa Naidu) has settled the properties and he also acted as a guardian for the adopted son, being the first respondent-plaintiff and the adoptive father took possession on behalf of the then minor adopted son, the plaintiff herein, for enjoying the properties and he also dealt with the properties in accordance with law. But however, the first appellate Court has wrongly described the title of the additionally exhibited documents and on a perusal of the records, it is seen that the description mentioned in the document is different from the one noted by the first appellate Court and hence, it is a fit case for remand to the trial Court.
25. Now, it is appropriate to consider the documents marked on either side. Ex.A-1 is dated 4.10.1938 and it contains only bimash number and the suit properties are now mentioned after re-survey with Survey Numbers. In such circumstances, it is the duty of the first respondent-plaintiff to prove that the suit properties are the properties mentioned in Ex.A-1 in terms of bimash numbers. But admittedly, neither Revenue records have been filed, nor the Revenue Officials have been examined, to prove the same. The proceedings of the Assistant Settlement Officer in Ex.A-18 has been marked, in which, except item Nos.4,11,12 and 15 of the suit properties, other properties are mentioned. But while perusing Ex.A-18, it is stated therein that the plaintiff is the legal heir of the deceased Lakshmi Ammal. On that basis only, patta has also been issued in respect of some of the properties purchased by Lakshmi Ammal under Ex.A-3. After the execution of Ex.A-1, Chengappa Naidu has purchased the properties under Ex.A-2 and Lakshmi Ammal has also purchased the properties under Ex.A-3. Lakshmi Ammal died without any issues, after the death of Chengappa Naidu, and in such circumstances, the first respondent-plaintiff is not the legal heir as per law.
26. In the plaint, the first respondent/plaintiff has stated that he is also the legal heir of the deceased Lakshmi Ammal, who is said to be the sister-in-law of the adoptive father of the plaintiff, i.e. Chengappa Naidu. Admittedly, Narayanasamy Naidu and Chengappa Naidu are own brothers. Narayanasamy Naidu is not having any children and his wife Lakshmi Ammal purchased the property under Ex.A-3. She also dealt with the property along with the plaintiff, as per Ex.A-11 on 23.8.1956, which does not relate to the suit properties. Lakshmi Ammal died intestate after the death of Chengappa Naidu. The plaintiff has not pleaded as to how he got the properties of Lakshmi Ammal as heir. Admittedly, in 1958, Chengappa Naidu died and only after his death, Lakshmi Ammal died. In such circumstances, the argument advanced by learned counsel for the first respondent/plaintiff that the properties of Lakshmi Ammal were inherited by the first respondent-plaintiff, as an heir, is unacceptable.
27. Admittedly, as already discussed in the earlier paragraphs, Ex.A-1 is not a Will. The first respondent/plaintiff is claiming title on the basis of Ex.A-1 as well as the legal heir of his adoptive father, namely, the deceased Chengappa Naidu, but there is no document to show that the suit properties are the properties mentioned in Exs.A-1 to A-3. No document has also been filed to correlate the suit properties with the properties mentioned in Exs.A-1 to A-3. So, it is a fit case of remanding the case to the trial Court to give an opportunity to both sides to ascertain as to whether the properties mentioned in Exs.A-1 to A-3 are the suit properties.
28. The first appellate Court has not considered the fact as to how the first respondent/plaintiff is the legal heir of Lakshmi Ammal, without pleading and evidence.
29. The properties purchased under Ex.A-3 by Lakshmi Ammal, are separate properties. As per Section 15 of the Hindu Succession Act, the first respondent-plaintiff alone is not the legal heir and so, the trial Court is directed to consider the case afresh after affording an opportunity to both sides, to find out as to whether the properties mentioned in Ex.A-3 are the subject matter of the suit properties and if so, to find out as to whether the first respondent/plaintiff is the legal heir of the deceased Lakshmi Ammal to succeed the suit properties.
30. All these facts have not been considered during the patta proceedings. It is well settled principle of law that the Revenue records will not confer or extinguish any title to the property. At the most, it will show only the possession of the property by the pattadar. Furthermore, Ex.A-18 has been issued on 30.8.1958, which is not disputed by the deceased first defendant till the first respondent/plaintiff filed the suit and they have also not taken steps to set aside Ex.A-18.
31. On the side of defendants, Ex.B-1 partition deed, has been filed in respect of the partition between Gopalsamy Naidu, who is none other than the natural father of the first respondent/plaintiff and the father of the deceased first defendant (first appellant) and Kamalanathan and Appaj, and his brother and brother’s sons Devaraj and Padmanabhan (sons of Duraisamy Naidu). Under Ex.B-2 on 25.5.1958, Gopalsamy Naidu purchased the property. Kamalanathan purchased some properties under Ex.B-3 on 10.12.1980. The other documents filed on the side of the defendants, are kist receipts, electricity consumption card, payment of electricity charges receipts, etc. Except these documents, no other document has been produced to prove that the suit properties have been divided among the three brothers, i.e. the sons of Gopalsamy Naidu. Even though the first defendant (since deceased) in the written statement has given three schedules of properties, stating that the properties have been divided and the third schedule of properties, is said to have been allotted to the share of the first respondent/plaintiff, during his evidence, D.W.1 (first defendant) stated that no partition has taken place. In his cross-examination as recorded in page 6, he has fairly conceded that even though in his written statement, he has stated that the suit properties were divided among the three brothers, being the sons of Gopalsamy Naidu, but actually, they have not divided the properties as mentioned in the alleged Will and as scheduled in the written statement. The evidence of D.W.1 in his cross examination reads as follows:
@///////nfhh;l;oy; vjph; jug;gpy; jhf;fy; bra;j buf;fhh;il ghh;f;ftpy;iy/ jhth brhj;Jk; capy; brhj;Jk; nrh;j;J g’;fpl;Lf;bfhz;nlhk; vd;W vjph; tHf;Fiuapy; fz;Ls;sJ/ Mdhy; capy; brhj;J mjpy; nruhJ/ capy; brhj;ij nrh;;j;J g’;fpl;Lf;bfhz;nlhk; vd;W vjph;tHf;Fiuapy; bjhpahj epiyapy;; nghlg;gl;lJ/ me;j thrfk; jtW/ vjph; tHf;Fiuapy; br’;fky eha[L thhpR vd;W nghltpy;iy/ ghfg;gphptpid ,d;Dk; Mftpy;iy/ khjphpf;fhf vGjg;gl;lJ/ rPdpthr eha[L vGjpdhh;/ aha; ahUf;F vd;bdd;d rh;nt ek;gh; vd;W vGjg;gl;lJ/ ifbaGj;J ,y;iy/ vGjpath; ,we;Jtpl;lhh;//////@
In such circumstances, the three schedules of properties mentioned in paragraph 4 of the written statement, are not relevant and reliable.
32. Furthermore, D.W.1 himself admitted in his evidence that the plaintiff has obtained loan and put up a Well in the property. He was a retired Superintendent from Public Works Department and in his cross-examination, he conceded that he has not raised a plea/defence that the plaintiff was not the adopted son of Chengappa Naidu. He further stated that < joint family properties had been alienated in favour of Chengappa Naidu under Ex.A-2 after execution of Ex.A-1.
33. So, even though the defence raised by the defendants is not true and correct, the properties inherited by the first defendant (since deceased) from his father Gopalsamy Nadiu, has been dealt with by them and that is evidenced by Exs.A-7 and A-8, which do not relate to the suit properties.
34. The argument advanced by learned counsel for the first respondent/plaintiff that at the first appellate stage, the plaintiff filed I.A.No.105 of 2001 pending First Appeal, to mark the documents which have been called for from Madurantakam Co-operative Land Development Bank and I.A.No.130 of 2001 has been filed by the defendants, pending First Appeal, to mark the documents which have also been called for from Madurantakam Co-operative Land Development Bank and those two I.As. have been allowed and the documents were marked as Exs.A-48 to 56 were marked on the side of the plaintiff and Exs.B-32 to 34 and Exs.C-1 to C-7 have been marked on the side of defendants. But, at the first appellate stage, no opportunity was given to the first respondent/plaintiff to let in any oral evidence to support the marked exhibits as noted above in the first appellate stage. Furthermore, those additional documents which were marked, were much earlier to the litigation, and they pertain to the year 1973 and the suit was filed in 1993.
35. It is to be noted that the first appellate Court, while marking the additional exhibits, committed error with regard to description of the documents and hence, the same has also got to be verified, rectified and properly described and discussed now by the trial Court, on remand.
36. Apart from this, the nomenclature of Ex.A-1 has also not been properly decided by both the Courts below and hence, the trial Court is directed to decide the nomenclature of Ex.A-1 in accordance with law, apart from all other documents filed before the trial Court by both parties and also the additional documents exhibited before the first appellate Court by both the parties.
37. In the above circumstance, I am of the view that this is a fit case for remand of the case to the trial Court. Accordingly, the trial Court is directed to give answer to the following issues on remand:
(i) Whether the suit properties are correlating with Exs.A-1 toA-3 ?
(ii) To find out the nomenclature of the document Ex.A-1 and to find as to whether the document Ex.A-1 is true and genuine ?
(iii) To decide whether the properties purchased by Lakshmi Ammal are the suit properties and if so, whether the first respondent/plaintiff is the legal heir of the said Lakshmi Ammal ?
(iv) To rectify the irregularity in describing the additional documents filed and marked before the first appellate Court on either side ? and
(v) Any other issue ?
38. The trial Court shall consider the above said issues, uninfluenced by any of the observations made in this Second Appeal, and after hearing both sides and after affording sufficient opportunity of hearing to both sides to let in oral and documentary evidence, the trial Court shall decide the said issues in accordance with law and dispose of the suit afresh, within a period of six months from the date of receipt of records along with a copy of this judgment.
39. In view of the above reasonings, the findings of both the trial Court and the first appellate Court are liable to be set aside. Accordingly, the judgments and decrees of both the trial Court and the first appellate Court are set aside in entirety and the case is remanded to the trial Court with the above direction to give opportunity to both sides and decide the case afresh in accordance with law, keeping in view the above aspects and irregularity committed by the first appellate Court and also to properly describe and discuss those exhibits marked by both the Courts below, including the nomenclature of Ex.A-1, and answer the issues and also the relief sought for by the first respondent-plaintiff, in accordance with law and dispose of the suit, on merits and in accordance with law, within a period of six months from the date of receipt of records along with a copy of this judgment.
40. The Second Appeal is accordingly allowed and remanded to trial Court with the above observations and directions. No costs.
41. Registry is directed to refund the Court fee paid on the Second Appeal before this Court, as per the Rules, and send back the entire records to the trial Court immediately, along with a copy of this judgment.
Office to note:
Office to comply with para 41 of this judgment forthwith.
1. Subordinate Judge, Mathuranthagam.
2. District Munsif, Mathuranthagam.
3. Record Keeper, V.R.Section, High Court, Madras.
S.A.No.246 of 2002