IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.06.2010
CORAM:
THE HONOURABLE MR.JUSTICE S. PALANIVELU
A.S.No.261 of 1998
1. S.R. Nanjundan (Deceased)
2. S.R. Subramaniam
3. S.R. Soundappan (Died)
4. S.R. Gowri
5. Leela
[brought on record as L.R. of the
deceased 3rd Appellant]
6. Rathna Nanjundan
7. Rajini Venkatesh
8. Sujini Moorthy
9. Gayathri Mohan
[Appellants 6 to 9 brought
on record as L.Rs. of the
deceased 1st Appellant] ... Plaintiffs/
Appellants
vs
S.R. Srikandan ... Defendant/ Respondent
Prayer: Appeal filed under Section 96 of C.P.C. against the Judgement and Decree dated 16.4.1998 and made in O.S.No.1333 of 1990 on the file of the Subordinate Judge, Coimbatore.
For Appellants : Mr.T.R. Rajagopalan
Senior Counsel for
Mr.T.R. Rajaraman
For Respondent : Mr.M.S. Krishnan
Senior Counsel for
M/s Sarvabhuman Associates
*****
JUDGMENT
1. The following are the allegations contained in the plaint:
1.(a) The plaintiffs 1 to 3 and defendant are brothers, who are sons of S.N. Ramasamy Iyer. The fourth plaintiff is their sister. Though the deceased had executed three Wills dated 1.9.1980, 4.1.1982 and 12.7.1982 claiming that the suit properties as his self acquired properties, he must have deemed to have died intestate. He died on 14.8.1984. The plaintiffs 1 to 3, defendant and the deceased all constituted a Hindu joint family. The suit properties were acquired in 1934 in the name of the deceased being the father and kartha of the family. He was employed as a Clerk in State Educational Service and his salary was hardly sufficient to maintain the large family.
1.(b) The joint family possessed certain ancestral properties near Sulur and the suit sites were acquired from and out of the income from the ancestral properties. For putting up the constructions on the site, the income from the ancestral properties, supplemented by borrowings was utilised. Later on, when the plaintiffs 1 to 3 began earning, additional constructions were put up from time to time. The suit properties were also maintained and kept in good and tenantable repairs from out of such contributions. While so, a part of the ancestral properties were sold earlier and other part of the properties were sold in 1977. The proceeds of sale was utilised for family necessities and benefit, including discharge of debts, incurred for construction and maintenance of suit properties by the deceased and the surplus sale proceeds were deposited in bank in the name of the deceased.
1.(c) The partition of ancestral properties between the deceased and his brothers is said to have been effectuated in 1938. Since the brothers had not made any claim over the suit properties, the suit properties were noted as self acquired properties of the deceased in the partition deed, which is not true. The defendant who resided in the suit properties since 1970 with the aged parents was requested to look after them with all comforts and the plaintiffs 1 to 3 were contributing for their maintenance and maintenance of the suit properties. The plaintiffs’ mother died in the year 1979.
1.(d) After the death of the deceased in 1984, the defendant’s behavioural pattern excited suspicion. The 3rd plaintiff was constrained to make enquiry and obtained Registration copies of the three Wills executed by the deceased. Only after going through the same the plaintiffs were shocked to learn about the wily machinations of the defendant to grab the entire Suit properties to the detriment of other co-sharers. The deceased was not a free capable testator was apparent on the face of varying bequeaths, particularly from the reason given in the last Will dated 12.7.1982, bequeathing the entire suit properties to the defendant. There was no reference to such reasoning in the first two Wills coupled with a wholesale bequeath in favour of the defendant under the last Will dated 12.7.1982 which is prima facie proof of the vitiating circumstances and the lack of sound and disposing state of mind of the testator. Therefore, the onus probandi is on the defendant, the sole beneficiary, to prove that the Will dated 12.7.1982 is the Will of a free and capable testator.
1.(e) The claim of the testator that the suit properties were his self acquisition is untenable. The possession and enjoyment as joint family properties are contra to the stray claim made in the partition deed and in the impugned wills. Despite repeated demands made by the plaintiffs, the defendant did not agree to any amicable partition of the suit properties or to pay the value of their shares thereon. The plaintiffs sent registered notice of demand claiming their shares on 22.8.1990, but the defendant refuted the plaintiffs’ claim by way of reply notice dated 3.9.1990 through his counsel and reiterated that the suit properties were self-acquired properties of the deceased and therefore he had every right to dispose of his property as he pleased. Hence the suit for partition and division .
2. In the written statement filed by the defendant, the following are averred:
2.(a) The suit is false, frivolous, vexatious and not sustainable in law as well as on facts. The defendant denies the entire allegations in the plaint except that those are specifically admitted and the plaintiffs are put to strict proof of their allegations. The Wills dated 1.9.80 and 12.7.1982 are vitiated as false and the further allegation that the deceased must have deemed to have died intestate is equally false. It is false to state that the suit properties were acquired from and out of income from ancestral properties. The further allegations that the plaintiffs 1 to 3 contributed for the alleged additional construction is false. It is also false that the suit properties were maintained from and out of the contributions by the plaintiffs.
2.(b) Originally the deceased father S.N.Ramasamy Iyer purchased Site No.20, adjacent to the suit property, from Coimbatore Municipal Council for Rs.336/- as per sale deed dated 3.3.1990. It was purchased as his self acquired property out of his own earnings as Clerk in the office of Inspector of Schools, Coimbatore. The ancestral properties were partitioned between S.N. Ramasamy Iyer and his brothers only on 25.4.1938. Only after the said partition he was handed over his share to be managed by himself. After purchase of the site on 3.3.1930, S.N.Ramasamy Iyer constructed super structure by borrowing amount from the Coimbatore Cooperative building society. Subsequently he sold this property to one Jeveenna Rao for Rs.5,000/- on 21.10.1931. As per sale deed dated 9.1.1934, S.N. Ramasamy Iyer purchased the present suit properties from his brother-in-law S.R. Subba Rao for Rs.2,500/-. On the date of sale he paid Rs.550/- by way of cash and the balance amounts were permitted to be discharged at a later date. A sum of Rs.900/- was paid to the Coimbatore Cooperative Building Society out of the sale consideration.
2.(c) S.N. Ramasamy Iyer spent his own money for the purchase and construction of the earlier property and as well as the suit property. In the family partition dated 25.4.1938, the suit property is described as self-acquired property of S.N. Ramasamy Iyer, as his brothers accepted the separate status of S.N. Ramasamy Iyer because of his self-acquisition of the suit property. If at all the suit properties had any ancestral nucleus, the brothers of S.N.Ramasamy Iyer would have claimed their shares in the suit property. Therefore the plaintiffs or other persons cannot have any claim over the suit properties.
2.(d) A portion of ancestral agricultural lands were sold by S.N. Ramasamy Iyer and his 4 sons as per sale deed dated on 13.9.1946 for Rs.5,000/- for discharging the family debts as recited in the sale deed. Again in 6.5.1955 another portion of agricultural lands were sold by all the members of the family for Rs.9,240/- and the said amount was also spent for the family. Finally, the remaining agricultural lands were sold as per sale deed dated 14.9.1978 and the sale amount was later on distributed to plaintiffs 2 to 4. The entire income from the agricultural lands and the entire sale proceeds from them have been utilised for the personal maintenance, education and marriage of the family members. Apart from this, the salary income of S.N. Ramasamy Iyer was also utilised for the welfare of the family.
2.(e) The plaintiffs cannot interpret the partition deed according to their convenience. The purchase of vacant site on 9.1.1934 exhibit the ignorance of the plaintiffs. The allegation that the plaintiffs contributed for the maintenance of the parents is false, as none of the plaintiffs contributed anything for that purpose. This defendant has been looking after his parents till their life time and the parents were residing in the suit properties with the defendant.
2.(f) The 1st Will dated 1.9.1980 was executed by the father when he was in a sound and disposing state of mind and he was hale and healthy. The plaintiffs have never objected to that. The second Will dated 4.1.1982, was got at the instance of the first plaintiff, under the guise of taking the treatment of his father. He induced him to sign some papers and got it registered as a Will without the knowledge and consent of the father. This was found out by the father himself and the same was expressed by him as per his letter dated 4.7.1982 addressed to the first plaintiff and as per the writings in his diary. The said Will dated 4.1.1982 was immediately cancelled by executing the last Will dated 12.7.1982, on his own free Will in a sound and disposing state of mind. The father had every right to dispose of his self acquired property according to his will and pleasure.
2.(g) Without a prayer for declaration or cancellation, the suit for partition is not maintainable. The suit itself is an abuse of process of law. The defendant has been sufficiently earning in his industry and has been keeping the parents and children in good comforts for the last 40 years. Hence the suit may be dismissed.
3. The learned Second Additional Sub-Judge, Coimbatore, after analysing the evidence on record, dismissed the suit without costs. He has held that the suit properties are self acquired properties of S.N. Ramasamy Iyer and Will Ex.A-29 has been proved as genuine. Challenging the judgement and decree, the plaintiffs are before this Court.
4. Following are the points for consideration which have arisen in this appeal:-
I) Whether the suit properties are ancestral properties or self acquired properties of deceased S.N. Ramasamy Iyer?
II) Whether the Will dated 12.7.1982 is genuine, valid and binding upon the plaintiffs?
[For the sake of convenience the ranks of the parties in the suit are adopted]
POINT NO.I
5. It is the main thrust of the plaintiffs that the suit properties were purchased by the deceased S.N. Ramasamy Iyer in his name in 1934, utilising the income received form the joint family properties and that he had no right to execute the Will conferring the right of the property on the defendant in entirety. Conversely, it is contended by the defendant that the suit properties were acquired by S.N. Ramasamy Iyer out of his own funds, which had no reference to the alleged joint family properties and that the documents produced by him would establish that they are purely self acquired properties.
6. Ex.P.10 is a registered partition deed dated 25.4.1938 which was brought about among S.N. Ramasamy Iyer and his two brothers Srikanda Iyer and Lakshmi Narasimma Iyer. In the said partition deed the properties are mentioned as self acquired properties of S.N. Ramasamy Iyer. It is a piece of evidence to show that the suit properties are self acquired properties of S.N. Ramasamy Iyer. In 1938, while the partition was effected between the brothers, there could not have been any motive in the mind of anybody else to describe a particular property as self acquired property of a brother.
7. The allegation that the suit property is self acquired property of S.N. Ramasamy Iyer is further strengthened by other circumstances also. S.N.Ramasamy Iyer purchased a vacant site, over which he took steps to construct a house. Since he was not having sufficient money to complete the construction, on 21.10.1931, he sold the said property to one Jeveenna Rao for Rs.5,000/- and afterwards on 9.1.1934 he purchased the suit property from one S.R. Subba Rao for Rs.2,500/-. He paid Rs.550/- only on the date of sale and he had agreed to pay the balance sale price in instalments. These independent transactions not relatable to joint family affairs would go to show that S.N. Ramasamy Iyer was having money in his hands earlier to the purchase of the suit property.
8. Another telling circumstance is that by means of Ex.B-13 Mortgage Deed dated 21.7.1945, he mortgaged the suit property for Rs.2,000/- in favour of one R. Mangalam Ammal. The reverse of 4th paper in Ex.B-13 shows endorsements of payments made by S.N. Ramasamy Iyer to the mortgagee on various dates. On 18.10.1956, the mortgagee Mangalam Ammal received the entire mortgage amount with interest and endorsed on the said page that the mortgage debt was discharged. Afterwards, by virtue of Ex.B-12, S.N. Ramasamy Iyer mortgaged the property to one K.S. Narayani Ammal for Rs.3,000/- on 16.11.1957. The said mortgage was discharged by him on 20.5.1970 by paying the entire principal and interest of mortgage to the mortgagee as evident from the endorsement on the reverse of the 3rd paper of the mortgage deed, which is signed by the mortgagee K.S. Narayani Ammal. After the execution of said mortgage deed S.N. Ramasamy Iyer had been paying the mortgage amount on various dates which have been endorsed on the reverse of the 3rd paper in this mortgage deed. In both the mortgage deeds S.N. Ramasamy Iyer has specifically mentioned that the property is his self acquired property.
9. The above said circumstances would establish that S.N. Ramasamy Iyer was having funds of his own to purchase a property in 1934. He had dealt with the property as his own on subsequent occasions and there is no evidence to show that he treated the same as joint family property. There is no evidence on the side of the plaintiffs to prove that the property was jointly enjoyed by the father and the sons.
10. It is stated by the plaintiffs that S.N. Ramasamy Iyer was getting Rs.35/- per month from his employment which was hardly sufficient to meet the family expenses and there could not have been any balance from his income for purchase of a property in his name. But by Ex.B-6 dated 21.10.1931 he purchased a vacant site in which door No.20 was in existence for Rs.336/-. [In the Ex.B.7 document both the brothers of S.N. Ramasamy Iyer have signed accepting that the property is self acquired property of S.N. Ramasamy Iyer]. These materials would clinchingly enlighten the position that Ramasamy Iyer was engaged in transactions as to the immovable properties of his own. Even though his monthly emoluments could not meet the family expenses, still by production of Ex.B-6 and the sale of uncompleted house for Rs.5,000/- would make clear that he possessed means to purchase the suit property in 1934.
11. In view of the above, the inescapable conclusion would be that the suit properties are self acquired properties of S.N. Ramasamy Iyer and there is no evidence to hold that the property was purchased from and out of joint family funds and the same was enjoyed by the father and the sons. This point is answered as indicated above.
POINT NO.II
12. S.N. Ramasamy Iyer had executed three wills Exs.B-27 to 29 dated 1.9.1980, 4.1.1982 and 12.7.1982 respectively, which are registered. In the first Will, he bequeathed the suit properties in favour of the defendant to be enjoyed by him till his life time without any power of alienation and after his death, it should go to his heirs absolutely. In this will he has mentioned that his first son S.R. Nanjundan is having his own business and is well placed in life and his third and fourth sons S.R. Subramaniam and S.R.Chowdappan are holding good appointments and are also quite well off and his daughter Gowri and her husband are also quite well off and his second son S.R.Srikantan (defendant) is without any appreciable income.
13. Subsequently, by virtue of second will Ex.B-28, he cancelled the earlier Will and bequeathed the suit properties in favour of his third son S.R. Subramanian and his daughter Gowri Ramanna, expressing his desire to make provision for them also, not only for his second son, the defendant. It is recited in the Will that they have to take equal shares in the properties. By executing Ex.B-29, he revoked the earlier two Wills and bequeathed the suit properties absolutely to the defendant. In this Will he has mentioned that his three sons and daughter are well off and the defendant is the only amongst his sons, who is blessed with a son. As per recitals, he was anxious to perpetuate his lineage by providing all comforts to his male descendents and secure spiritual benefits for him and his departed wife, that his third son S.R. Srikantan has been maintaining him and his wife until her death, that he is confident that he would continue to maintain him with love and affection and that on his own volition and with his sound testamentary disposition of mind he is making this devise and bequeath the schedule property to him with all incidents of absolute ownership for ever. This is the Will which is being assailed by the plaintiffs.
14. It is contended by the plaintiffs that the deceased was not a free agent, that he lacked sound and disposing state of mind and that the will is not genuine. To prove the execution and attestation of the Will, one among the attestors D.W.2 was examined by the defendant. His evidence plays pivotal role in this case. In his own testimony he has stated that at the time of execution of the Will, advocate Venkataraman, Ramasamy Iyer and Dr. Murthy were present, that the advocate was keeping the typed deed, that the advocate read over the contents for which Ramasamy Iyer expressed his consent, that in their presence Ramasamy Iyer put his signatures in 3 pages, that he (D.W.2) signed as first witness and Dr. Murthy put his signature as second attesting witness, that afterwards Ramasamy Iyer handed over the Will to the Sub-Registrar, that the advocate made the registration fee, that at the time of execution of Ex.B-29 Ramasamy Iyer was commanding good physical and mental health and that the testator lived two years after the execution of the Will.
15. In the cross examination nothing was elicited as to why he has to depose against the plaintiffs. He was not attributed with any motive against them. Nothing was shattered in the cross examination. In the cross examination he says that he does not know whether Ramasamy Iyer signed in a book maintained in the Sub-Registrar Office, that he did not inform the defendant about the execution of the Will and it is false to state that the Will is a fabricated one. It was suggested to him that the will was already executed and signatures of Ramasamy Iyer and witnesses were obtained and Ramasamy Iyer came only to identify. The suggestions were denied by D.W.2. There is no room to discard his evidence. The execution and attestation of the Will has been established by the examination of D.W.2 who is attester to it.
16. The learned Senior Counsel Mr.T.R. Rajagopalan appearing for the appellants would argue that it is in the chief examination of the D.W.1 (defendant) that he took his father to Sub-Registrar office for execution of Ex.B-29, which would show that he has played a vital role in obtaining the Will and this circumstance is highly suspicious. In support of his contention he placed reliance upon a decision of the Supreme Court in A.I.R. 1959 S.C. 443 [H. Venkatachala Iyengar v. B.N.Thimmajamma and Others] wherein Their Lordships were pleased to observe that if it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.
17. Repelling the contention, Mr.M.S. Krishnan, the learned Senior Counsel arguing for the respondent would contend that except taking his father to Sub-Registrar office there is no evidence on record to show that he engaged himself in any other affairs in the execution of the Will and hence it could not be considered to be a suspicious circumstance. To strengthen his argument, he cites Hon’ble Apex Court’s decision in 2005 (2) L.W. 89 [Sridevi & others v. Jayaraja Shetty & Others] wherein it is observed as follows:
“16. Counsel for the appellants argued that the respondent No.13 had taken prominent part in the execution of the Will as he was present in the house at the time of the alleged execution of the Will. We do not find any merit in this submissions. Apart from establishing his present in the house, no other part is attributed to Respondent No.13 regarding the execution of the will. Mere presence in the house would not prove that he had taken prominent part in the execution of the will.”
There is no material to show that except taking his father to the Sub-Registrar Office, the defendant participated effectively in the execution of the Will. Hence, it could not be considered to be suspicious circumstance.
18. The learned Senior Counsel for the Appellants placed reliance upon a decision in AIR 2006 (SC)1895 [Joseph Antony Lazarus (D) by L.Rs. v. A.J. Francis] and argued that as observed therein the defendant has failed to examine the advocate who drafted the Will and the Sub-Registrar before whom the Will is said to have been presented for registration. In the said case, the attester examined to prove the Will is wife of the beneficiary and hence the Court has held that the non-examination of the advocate who drafted the will and the Sub-Registrar is fatal. But the facts in this case are otherwise. Attestor D.W.2 is an independent witness against whom no motive was attributed.
19. It is also contended by the plaintiffs that while the testator has given substantial interest in the suit properties to them in the earlier will, their exclusion in Ex.B-29 will constitute a suspicious circumstance. In a Division Bench decision of this Court in 2002 (1) CTC 650 [D. Kausalya v. S. Sankaran] it is observed that if the entire evidence is looked into, the respondent did not offer any acceptable explanation for the exclusion of the appellant from inheriting the property. In the absence of any detail with regard to the conduct of the appellant which drove the testator to exclude the appellant along with the unequal disposition of the property by the testator makes it clear that there exists suspicious circumstances which were not properly explained and got over by the respondent. But in this case the Will itself contains the reasons for exclusion of other sons and daughter. The testator himself has mentioned that his sons and daughter are well off that the defendant had been maintaining him and his wife and that he was desirous of giving the property to the defendant who is having a son. Hence, the exclusion of other heirs in the Will has been properly explained in the contents of the will itself.
20. By the oral evidence of D.W.2 it has been established that the testator was commanding good physical and mental health and sound disposing state of mind also and that he acknowledged the contents and approved them. He presented the Will to the Sub-Registrar for registration. Execution and attestation have been duly proved in this case and there is nothing to smell rat in the execution and attestation of Ex.B-29 which is genuine. The point is answered in affirmative.
21. An indepth study of Exhibits, oral evidences would pave way to conclude that the suit properties are self acquired properties of S.N. Ramasamy Iyer and Ex.B-29 executed by him in favour of the defendant is genuine. There is no valid ground to set aside the judgment and decree passed by the trial Court, which deserve to be confirmed and accordingly they are confirmed. The appeal suffers dismissal.
In fine the appeal is dismissed. No costs.
ggs
To
The Subordinate Judge,
Coimbatore