BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04/01/2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.11093 of 2008
and
S.A.No.182 of 2005 and
connected Miscellaneous Petitions
W.P.No.11093 of 2008
K.G.K.Ganesamoorthy ... Petitioner
Vs
1.The Joint Director of School
Education,
Elementary Education, Chennai.
2.The District Elementary Educational
Officer, Tirunelveli District.
Tirunelveli.
3.The Assistant Elementary Educational
Officer, Tirunelveli.
4.K.G.Sankaranarayanan ...Respondents
(R4 impleaded as per order dated
10.12.2008 in M.P.No.2/08 in
W.P.No.11093/2008)
PRAYER
Petition filed under Article 226 of the Constitution of India praying
for the issuance of a Writ of certiorarified mandamus, calling for the records
relating to the impugned order of the second respondent made in
Na.Ka.No.7013/A2/2008, dated 20.11.2008 and quash the same and consequently
direct the respondents to change the educational agency of the Ganeshamoorthy
Middle School in the name of the petitioner.
!For Petitioner … Mr.M.Gnanagurunathan
^For Respondents… Mr.S.C.Herold Singh
(Govt.Advocate) (R1 to R3)
M/s T.Jeen Joseph
S.Sivakumar (R4)
S.A.No.182 of 2005
1.R.Krishnammal
2.K.G.Kothai Nayagi
3.K.G.Balamaheswari
4.K.G.Suriya Kala
5.K.G.Kajagowri …Appellants
v.
1.K.G.Kantha Kumar (Died)
2.K.G.Sivasankara Narayanan
3.K.G.Alagarammal
4.District Elementary Educational Officer,
Tirunelveli -2.
5.Assistant Elementary Educational Officer,
Palay Nagar, Palayamkottai -2
Now at Perumalpuram.
6.Joint Director,
Directorate of Elementary Education
of Tamilnadu, Chennai -6.
7.State of Tamil Nadu,
Through its District Collector,
Tirunelveli -9.
8.Selva Rani
9.Subbalakshmi
10.Ganesamoorthy
11.Raja Gothainayagi
12.Jeya Durga
13.Vijaya Durga …Respondents
(Respondents 8 to 13 brought on record
as LRs of the deceased R1 vide court
order dated 12.06.2007 in M.P.No.1/2009
Second Appeal filed under Section 100 of the Code of Civil Procedure against the
judgment and decree in A.S.No.77 of 2004 on the file of the first Additional
District Judge, Tirunveli dated 08.12.2004 reversing the judgment and decree in
O.S.No.177 of 1998 on the file of the second Additional Sub-Court, Tirunelveli
dated 25.03.2004.
!For Appellant
in Second Appeal … M/s.Sarvabhauman
Associates
^For Respondents … Mr.T.R.Rajagopal,S.C.
For Ms.N.Krishnaveni for R2
… Mr.S.C.Herold Singh,G.A.
(R4 to R7)
… Mr.M.Gnanagurunathan
(R8 to R13)
:COMMON ORDER
Heard both sides.
2. The Writ Petition and Second Appeal were grouped together on being
specially ordered by the Administrative Judge and posted before this Court.
3. The writ petition was filed by K.G.K.Ganesa Moorthy, 10th respondent in
the Second Appeal and the son of the first defendant in the suit in O.S.No.177
of 1998. The writ petition was filed challenging the order of the District
Elementary Educational Officer, Tirunelveli, dated 20.11.2008, wherein and by
which, it was informed that the writ petitioner and K.G.Sankaranarayanan, who is
the impleaded 4th respondent were directed to submit certain documents for
having the right of management over the Ganesamoorthy Middle School, Kurichi,
Palayamkottai Circle.
4. It was found that Ganesa Moorthy Pillai, the former Manager had left a
Will dated 17.02.1995, in which he had made his son K.G.Kanthakumar to be the
owner of the school. In a subsequent Will, dated 28.02.1995, he had stated that
both movable and immovable properties will go to his two male heirs in equal
parts. On 19.10.1996, a document was registered at Parasalai, (which is a
settlement) by which it was found that the school building will be enjoyed
absolutely by Kanthakumar. Since in the second Will dated 28.02.1995, it was
stated that both the movable and immovable properties were to be inherited by
both the sons in equal shares, without any order of the Civil Court, the right
of the Management of the School cannot be considered by the Department and both
the legal heirs were directed to approach the appropriate Civil Court for
getting appropriate relief. Challenging the said order, the writ petition came
to be filed.
5. After filing of the writ petition, an application was taken out to
implead K.G.Sankaranarayanan as fourth respondent and was impleaded by an order
dated 10.12.2008. Private notices were ordered to the fourth respondent on
05.01.2009 and he is represented by counsel.
6. The second respondent, District Elementary Educational Officer had
filed a counter affidavit dated Nil (2009). Even while the writ petition was
pending, parties were locked up in a civil litigation before the 2nd Additional
Sub-Court Tirunelveli in O.S.No.177 of 1998, which was decreed on 25.03.2004 and
against which an appeal was filed before the Appellate Court in A.S.No.77 of
2004. The appeal was allowed by a judgment and decree dated 08.12.2004 and the
order of the Trial Court was set aside. It was against the said judgment and
decree, the original plaintiffs preferred the Second appeal in S.A.No.182 of
2005. Both sides agreed that the disposal of the Second Appeal will decide the
destiny of the Writ Petition.
7. The facts leading to the Second Appeal are as follows:-
Late K.Ganesamoorthy was the Manager as well as the owner of the
Ganesamoorthy Middle School in Kurichi in Palayamkottai circle. In 1995, he
transferred the management of the school in favour of K.G.Kanthakumar. He also
executed two Wills, one dated 17.02.1995 and the other Will dated 28.02.1995.
Subsequently, he executed a Registered Settlement Deed on 19.10.1996, settling
the school buildings in favour of Kanthakumar. As per the first Will dated
17.02.1995, he bequeathed the right of Management of the school and a part of
the school building in favour of Kanthakumar, his first son. He also provided a
dwelling house and a part of the building of the school to his second son
SankaraNarayanan. By the second Will dated 28.02.1995, he bequeathed all his
properties including the school, both movable and immovable in favour of his two
sons M/s.K.G.Kanthakumar and K.G.Sankaranarayanan in equal moiety. Thereafter,
he executed a registered Settlement Deed dated 19.10.1996 settling the school
buildings in favour of his son Kanthakumar. In the Wills, he did not provide
anything either to his wife or to his female children. Late Ganesamoorthy had
two wives. His first wife pre-deceased him and through her, he had two sons
M/s.K.G.Kanthakumar and K.G.Sankaranarayanan and a daughter by name
K.G.Alagarammal. He married one R.Krishanammal, as his second wife after the
passing away of his first wife and through her, he had four daughters
M/s.Kothainayagi, Balamaheswari, Suriya Kala and Gajagowri. On the death of late
Ganesamoorthy, his second wife and children filed a suit in O.S.No.177 of 1998
on the file of Second Additional Sub Court, Tirunelveli, seeking a declaration
and permanent injunction in respect of the suit properties and also claiming
21/40 shares in the second schedule of the property. In the suit, the
defendants were the children of the first wife i.e. K.G.Kanthakumar and
K.G.Sivasankaranarayanan and Alagarammal.
8. In the suit O.S.No.177 of 1998, 11 documents were filed by the
plaintiffs and they were marked Exs.A1 to A11. On the side of the defendants, 26
documents were filed and marked as Exs.B1 to B26. On behalf of the plaintiffs,
his first wife Krishnammal was examined as P.W.1 and two other witnesses
M/s.Balagurusamy and Muthukumarasamy were examined as P.W.2 and P.W.3. On the
side of the defendants, the first defendant, Kanthakumar examined himself as
D.W.1. Apart from that, four other witnesses M/s. Abdul Ajeez, Balamurugan,
Beermohammed and Pandian were examined as D.W.2 to D.W.5.
9. The Trial Court framed the following 8 issues:
i)Whether the first schedule property is a joint family property?
ii)Whether the Will dated 28.02.1995 executed by late Ganesamoorthy was
legally valid?
iii)Whether in respect of the first schedule property, the plaintiffs as
well as defendants 1 to 3 are the agency of the said property?
iv) Whether it is correct that defendants 1 to 3 alone are the agencies of
the first scheduled property?
v)whether the defendants 1 to 3 and the plaintiffs are entitled to have a
right to have rotational management over the school?.
vi)In respect of the second schedule property, whether the plaintiffs are
entitled to get 21/40 shares?.
vii) In respect of the first schedule property, whether it is correct to
state that 4 and 5th defendants were responsible for mismanagement?
viii) whether the plaintiffs are entitled for any relief?
10. The Trial Court found that the school was started by one Kandasamy
Pillai. There was no proof that he in his personal earnings started the school
and since defendants K.G.Kanthakumar and K.G.Sankararanarayanan were born to
Ganesamoorthy, the first schedule property should be considered as a joint
family property. Thereafter, the Trial Court considered the legal effect of the
Will dated 28.02.1995, marked as Ex.B1. The Trial Court found that late
Ganesamoorthy executed the first Will and thereafter, without reference to that
Will, he executed a second Will and within a short period, the necessity to
write the second Will was not explained. In the Will dated 28.02.1995, there was
no reference to the Management of the School and it was claimed that after
17.05.1995, since K.G.Kanthakumar, was the School Secretary and Manager as per
Ex.B6, the necessity to create subsequent document was not explained. It was
found that Ganesamoorthy’s physical condition was impaired and he was undergoing
medical treatment. Subsequently, as per Ex.B21, he created a Settlement Deed
registered at Parasalai (Kerala State). Even though there was a reference to
third item in the schedule, it was not visited by any one of them and
therefore, the first plaintiff cannot have any right over the property in Door
No.44 and Door No.43A. It also found that Ex.B21 was void document and in
respect of Ex.B3 and Ex.B1, the first defendant in order to deny the right of
others had utilised his relationship with late Ganesamoorthy and created those
documents.
11. There was also difference in the signatures of P.W.3, Muthukumarsamy
and D.W.2, Abdul Ajeez in the Will dated 28.02.1995. Even assuming that the
Settlement Deed in Ex.B21 is accepted as true wherein it was stated that two
sons alone are entitled for share, it creates a doubt on the existence of Ex.B1
Will dated 28.02.1995 since it was found that Ganesamoorthy’s physical and
mental condition were not proper, those documents were created and hence in
order to deny the right of plaintiffs, the defendants have made use of
Ganesamoorthy and when his mental condition was not good, these documents were
created and therefore, Ex.B1 is not legally valid. With reference to the
second schedule property, the finding was that it was a joint family property
and since it is an ancestral property, the plaintiffs are entitled for 21/40
shares. In respect of the second schedule, first and second items are
concerned, 5/8 shares will go to the plaintiffs. With reference to the 5th
issue relating to the Management of the School, it found that the plaintiffs are
also entitled for a share in the Management of the school and therefore, the
Management must be done on a rotational basis. For the first two years, the
plaintiffs will manage the school and thereafter, for the subsequent two years,
the defendants will manage the school and the official respondents must
implement the rotational management.
12. As against the judgment and decree dated 25.03.2004, the defendants
filed an appeal in A.S.No.77 of 2004 and the matter was tried by the I
Additional District Judge, Tirunelveli. The Appellate Court held that for the
period from 1980 to 1996, Ganesamoorthy’s Physical and mental condition was
proper and therefore, both the Wills were written by him. At the time writing of
the Wills he was in good mental and condition. The settlement deed in Ex.B21
was legally valid. The Lower Appellate Court also held that in a proper mental
and physical condition late Ganesamoorthy left the properties to be shared
between the two male sons and he had not provided any share for the daughter or
for his wife. The Settlement Deed came into force after the two Wills came into
existence and Ganesamaoorthy was holding several posts and he had also
participated in the marriage of the plaintiffs and the defendants. He was
working in the Civil Supplies Department and thereafter, as Headmaster and
Correspondent of the School. He had his own income and Ganesamoorthy had every
right to create encumbrance in the property. Ganesamoorthy transferred the
Management of the school to his first son. The amounts for the marriage written
in Ex.B19 and photo as well as negatives of the marriage conducted for
K.G.Sivasankaranarayan showed Ganesamoorthy in good condition. The judgment of
the Trial Court was not legal and therefore, the judgment of the Trial Court was
was set aside by a judgment and decree dated 08.12.2004.
13. In the second appeal filed by the original plaintiffs, it was
contended that the order of the lower appellate Court was not valid. Late
Ganesamoorthy had no right to bequeath the entire school property in favour of
his first son. Exs.B1 and B3 were not proved and the Ganesamoorthy was not in
sound mental condition and the evidence of P.W.2 was not appreciated by the
lower appellate Court regarding the mental condition of Ganesamoorthy. It was
also proved that Ganesamoorthy was taking treatment from 1993 to 1996 which was
admitted by the first defendant and during which period Exs.A10, A11 and Ex.B2
came into existence. Since in the second Will, there was no reference to the
previous Will and there was no reference about the school management, EX.B21
Settlement Deed registered at Parasalai was not valid. Since P.W.3 had not seen
late Ganesamoorthy affixing the signature and also spoken about the state of
mind, the Will cannot be relied upon. Since no property were allotted to the
heirs of the second wife, the will was invalid.
14. The question of law framed by this Court at the time of admission on
01.03.2005 was whether the first appellate Court was justified in not discussing
all the issues which were discussed by the Trial Court?
15. Mr.Gnanagurunathan, learned counsel appearing for the appellants
submitted that Ganesamoorthy’s first son K.G.Kanthakumar was working as Middle
School teacher and was also helping his father to run the school and therefore,
he alone will run the school. He also referred to his second son
K.G.Sankaranarayanan, who was already employed in higher secondary school and
gave the second schedule property to him. In the second Will dated 28.02.1995 he
had very clearly stated that one son and other daughter had already died and
that he had made arrangement for getting married the daughters of his second
wife. He had earned the entire property on his own personal income as he was
working as Firka Supply Officer and later worked as Headmaster of the School.
With reference to the marriage of Gajagowri, he made his two sons to be
responsible to get her married and the second wife will stay with the children
of the first wife for her life time and in case she does not want to live them,
and she is also entitled to live in House No.43 and get the family pension. The
learned counsel after taking this Court to various evidences also placed
reliance upon certain judgments of this Court and the Supreme Court in support
of his contentions.
16.1. The learned counsel for the appellant relied upon judgment of this Court
in Sadachi Ammal v. Rajathi Ammal (A.I.R.1940 Madras 315) for the purpose of
contending that the registration is not a proof of testamentary capacity and the
Will will have to be proved before the Court. While proving the execution of the
Will, the testator’s capacity and mind also will be a relevant factor.
16.2. The learned counsel also relied upon a judgment of the Supreme Court
in H.Venkatachala Iyengar v. B.N.Thimmajamma and others (A.I.R.1959 SC 443) for
the purpose of contending that the proof of the signature of the deceased will
show that he is presumed to have known the provisions of the instrument he had
signed. But the said presumption is liable to be rebutted by proof of suspicious
circumstances.
16.3. Thereafter, reliance was placed upon the judgment of the Supreme
Court in Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and
another (AIR 1962 SC 567), wherein the Court found that the propounder of the
Will getting sole benefit subject to the maintenance of the testator’s wife and
sister and he himself taking part in the execution of the Will and with the
signature of the testator not appearing to be his usual signature through
suspicion and in such circumstances, the fact of registration cannot be a
sufficient proof. It is for the propounder to dispel the suspicious
circumstances.
16.4. The learned counsel also relied upon the judgment of this Court in
S.Ramamurthy v. Jayalakshmi ammal (1991-1.L.W. 391) wherein, this Court held
that execution of a document is not mere signing of it.
16.5. The learned counsel further placed reliance upon the judgment of
this Court in Dharman and six others v. Marimuthu (1996 (II) CTC 279), wherein
this Court held that in undue influence and unnatural and unconscionable
disposition of the entire properties by gift to person having dominating
position the initial burden is discharged by proving dominating position. The
Court can also go into the health condition of the donor and total exclusion of
daughters and minor children of the donor without mentioning any reason or
misunderstanding can be held to be a suspicious circumstances.
16.6. The learned counsel also placed reliance upon the judgment of this
Court in T.Kanniah Rao v. Inder Rao (1996 (II) CTC 466) to the effect that onus
of proof is on the propounder to explain the suspicious circumstances by
adducing unimpeachable evidence regarding genuineness and authenticity of Will.
16.7. The learned counsel further placed reliance upon a judgment of this
Court in Rajammal and others v. Ramasami and others (1998 (I) CTC 98), wherein
this Court held that the burden of proof is open to the propounder of the Will
to prove the doubts in execution of the Will. For the very same purpose, the
judgment of the Supreme Court in Gurdial Kaur and Others v. Kartar Kaur and
others (1998) 4 SCC 384 was relied upon and in that case, it was found if some
of the natural heirs are disinherited in the Will without any reason, the
genuineness can be doubted.
16.8. The learned counsel further relied upon judgment of this Court in
Sivasamy and others v. Poomalai and others (2008 (5) CTC 294) once again for the
very same purpose for contending that it is for the propounder of the Will to
remove grounds of suspicion.
16.9. The learned counsel also placed reliance upon the judgment of the
Supreme Court in K.Laxmanan v. Thekkayil Padmini and others (2009) 4 MLJ 681
(SC) and Bharpur Singh and others v. Shamsher Singh (2009) 5 MLJ 1605 (SC-NOC)
to reiterate the same contentions.
16.10. He also relied upon the judgment of this Court in P.R.Vijayarangam
v. P.R.Ramanujam (2009 (3) CTC 503) to contend that if the testator had a
falling health profile and the propounder playing predominant role will
contribute serious doubts about the execution of the Will.
16.11. Lastly, he relied upon a Division Bench judgment of this Court in
Premavathi and others v. Sundararajan and others (2009 (3) CTC 801) for
contending that propounder should remove all suspicious circumstances and must
prove the Will.
17. Therefore, he contended that executing two wills within a short time
and excluding the heirs of the second wife from any inheritance and registering
a Settlement in a far away place in Kerala as well as the medical evidence
produced will show he was under treatment and that the late Ganesamoorthy never
had a disposing state of mind. He also contended that the Trial Court had
appreciated all the evidence and found the documents in Exs.B1 and B3 were not
valid and Ex.B21 was unreliable.
18. Mr.T.R.Rajagopal, learned Senior Counsel after taking this Court to
the evidence adduced before the Trial Court contended that the Doctor who was
examined as P.W.2., Balagurusamy in his cross examination had stated that
Ganesamoorthy came to him during 1993 and thereafter in 1996. He was not aware
of the post held by him during the said period. He could not deny that he was
receiving pension and was not aware of his signature. During the relevant
period, he was instrumental in performing marriage for one son and one daughter
and was receiving guests during the marriage ceremony as could be seen from the
video picture. Even in his chief examination, he had stated that on
01.01.1993, 02.10.1993 and 23.11.1993, he was only taking treatment as an
outpatient and even in October 1996 he was only treated as out patient.
Therefore, mental state of mind of a person cannot be proved by this scanty
evidence of P.W.1 who was only working as part time in the hospital and who had
seen him occasionally and also did not produce any medical records about the
treatment.
19. On the other hand, during the relevant period, the late Ganesamoorthy
was in good physical condition and was also holding the post of School
Correspondent. The fact he chose the first son to run the school was that he
was already a teacher in the School and was helping him in the Management of the
school. It is not as if he did not take care of the other children. In the
second Will, he had made a description of all the other children, which will
clearly show his disposition of mind. The Will was proved in the manner known
to law which fact was found accepted by the lower appellate court. He also
submitted that Ex.B5 was a legal notice sent by plaintiffs 4 and 5. Thereafter,
the said Ganesamoorthy had functioned in the school and the other documents like
sending form for Urban land tax Ex.B11. Ex.B13 series were 7 post cards written
by Ganesamoorthy in his own handwriting. The only book maintained by
Ganesamoorthy is Ex.B18 and the marriage account for the second plaintiff in
Ex.B19 clearly showed that he was having a good physical state of mind. The
photos and negatives found in Ex.B20 series will show that Ganesamoorthy was
receiving guests in the marriage function. These facts were simply ignored by
the Trial Court but were found to be valid documents in assessing the mental and
physical health of Ganesamoorthy and further it is not as if the lower appellate
court did not appreciate the evidence on record. On the other hand, it did not
discuss all the material facts and came to the conclusion.
20. In the second appeal, only when there was a question of law involved
the findings recorded by the lower appellate court can be interfered with.
Evidence recorded clearly shows that Exs.B1 and B3 as well as Ex.B21 cannot be
held to be invalid documents or mutually contradictory documents. Since
Ganesamoorthy’s first son was already in the school and helping his father to
manage the school, it is natural that the father had given an opportunity to him
to continue the administration of the school. His second son was already
employed in some other school and therefore he gave exclusive right to his first
son. In the second Will, he had also mentioned about the other daughters of his
second wife as well as the children of his first wife and made reference to each
one of them and expressed clearly that he had not provided anything for them.
Therefore, it is not as if the testator was not aware of the other children or
their standing in the Society. Even about his own second wife, he had given her
right of residence and the family pension to take care of herself. About the
last daughter of the second wife, he had mandated both the sons to be
responsible for getting her married. Therefore, it cannot be said that the Will
came into existence in suspicious circumstances that it should be discarded by
the Court at the instance of the plaintiffs. The propounder of the Will had
discharged their obligation in proving the Will and the minor discrepancies
cannot invalidate the existence of those documents. The findings recorded by
the lower appellate Court do no call for any interference.
21. Under the circumstances, this Court has no hesitation in dismissing
the second appeal in S.A.No.182 of 2005 and confirming the judgment and decree
of the lower appellate court in A.S.No.77 of 2004 on the file of the first
additional District Court, Tirunelveli dated 08.12.2004. However, the parties
are allowed to bear their own costs.
22. In view of the dismissal of the second appeal, the writ petition filed
by the petitioner will have to be allowed and the impugned order stands set
aside. As far as the management of the School is concerned, the right to manage
the school will devolve upon the legal heirs of K.G.Kanthakumar as per the
judgment and decree passed by the lower appellate court in A.s.No.77 of 2004
dated 08.12.2004. No costs. Consequently, connected miscellaneous petitions are
closed.
Svki
To
1.The Joint Director of School
Education,
Elementary Education, Chennai.
2.The District Elementary Educational
Officer, Tirunelveli District.
Tirunelveli.
3.The Assistant Elementary Educational
Officer, Tirunelveli.