{"id":221313,"date":"2008-03-19T00:00:00","date_gmt":"2008-03-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sorimuthu-vs-sankaran-pillai-died-on-19-march-2008"},"modified":"2015-02-16T03:50:13","modified_gmt":"2015-02-15T22:20:13","slug":"sorimuthu-vs-sankaran-pillai-died-on-19-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sorimuthu-vs-sankaran-pillai-died-on-19-march-2008","title":{"rendered":"Sorimuthu vs Sankaran Pillai (Died) on 19 March, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Sorimuthu vs Sankaran Pillai (Died) on 19 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 19\/03\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nS.A.Nos.740 to 743 of 1998\nand\nC.M.P.Nos.7288 to 7290 of 1998\n\nS.A.No.740 of 1998\n\n1.Sorimuthu\n2.Shailappan\n3.Kumaravel\n4.Dalavai\n5.Pechimuthu\t\t... Appellants\/Appellants\/\n\t\t\t\tDefendants 2 to 6\nVs\n\n1.Sankaran Pillai (died)\n2.Kuppammal\n3.S.Andiappan\n4.S.Subramanian\n5.S.Gurusamy\t\t...   Respondents\/Respondent\/<\/pre>\n
\t\t\t\tPlaintiff
\n(RR2 to 5 are brought on record as L.R of the deceased sole respondent vide
\norder of this Court dated 21.10.2003 made in C.M.P.Nos.18263 to 18266\/98.)<\/p>\n
Prayer in S.A.No.740 of 1998<\/p>\n
Second Appeal filed under Section 100 of the  Code of Civil Procedure,
\nagainst the judgment and decree dated 10.02.1998 passed in
\nA.S.No.94 of 1992 on the file of the Subordinate Judge, Ambasamudram, in
\nconfirming the judgment and decree dated 20.12.1989 passed in O.S.No.89 of 1982
\non the file of the Additional District Munsif, Ambasamudram.\n<\/p>\n
S.A.No.741 of 1998<\/p>\n
#Sundaram Pillai\t… Appellant\/Appellant\/
\n\t\t\t\tDefendant<\/p>\n
Vs<\/p>\n
$1.Sankaran Pillai (died)\n<\/p>\n
2.Kuppammal\n<\/p>\n
3.S.Andiappan\n<\/p>\n
4.S.Subramanian\n<\/p>\n
5.S.Gurusamy\t\t…   Respondents\/Respondent\/
\n\t\t\t\tPlaintiff
\n(RR2 to 5 are brought on record as L.R of the deceased sole respondent vide
\norder of this Court dated 21.10.2003 made in C.M.P.Nos.18263 to 18266\/98.)<\/p>\n
Prayer in S.A.No.741 of 1998<\/p>\n
Second Appeal filed under Section 100 of the  Code
\nof Civil Procedure, against the judgment and decree dated 10.02.1998 passed in
\nA.S.No.96 of 1992 on the file of the Subordinate Judge, Ambasamudram, in
\nconfirming the judgment and decree dated 20.12.1989 passed in O.S.No.622 of 1982
\non the file of the Additional District Munsif, Ambasamudram.\n<\/p>\n
S.A.No.742 of 1998<\/p>\n
#Madasamy Pillai\t… Appellant\/Appellant\/
\n\t\t\t\tDefendant<\/p>\n
Vs<\/p>\n
$1.Sankaran Pillai (died)\n<\/p>\n
2.Kuppammal\n<\/p>\n
3.S.Andiappan\n<\/p>\n
4.S.Subramanian\n<\/p>\n
5.S.Gurusamy\t\t…   Respondents\/Respondent\/
\n\t\t\t\tPlaintiff
\n(RR2 to 5 are brought on record as L.R of the deceased sole respondent vide
\norder of this Court dated 21.10.2003 made in C.M.P.Nos.18263 to 18266\/98.)<\/p>\n
Prayer in S.A.No.742 of 1998<\/p>\n
Second Appeal filed under Section 100 of the  Code
\nof Civil Procedure, against the judgment and decree dated 10.02.1998 passed in
\nA.S.No.95 of 1992 on the file of the Subordinate Judge, Ambasamudram, in
\nconfirming the judgment and decree dated 20.12.1989 passed in O.S.No.621 of 1982
\non the file of the Additional District Munsif, Ambasamudram.\n<\/p>\n
S.A.No.743 of 1998<\/p>\n
#1.Sorimuthu\n<\/p>\n
2.Shailappan\n<\/p>\n
3.Kumaravel\n<\/p>\n
4.Dalavai\n<\/p>\n
5.Pechimuthu\t\t… Appellants\/Appellants\/
\n\t\t\t\tDefendants 2 to 6
\nVs<\/p>\n
$1.Sankaran Pillai (died)\n<\/p>\n
2.Sundararaja Pillai\n<\/p>\n
3.Madasamy Pillai\n<\/p>\n
4.Kuppammal\n<\/p>\n
5.S.Andiappan\n<\/p>\n
6.S.Subramanian\n<\/p>\n
7.S.Gurusamy\t\t…   Respondents\/Respondent\/
\n\t\t\t\tPlaintiff
\n(RR4 to 7 are brought on record as L.R of the deceased sole respondent vide
\norder of this Court dated 21.10.2003 made in C.M.P.Nos.18263 to 18266\/98.)<\/p>\n
Prayer in S.A.No.743 of 1998<\/p>\n
Second Appeal filed under Section 100 of the  Code
\nof Civil Procedure, against the judgment and decree dated 10.02.1998 passed in
\nA.S.No.97 of 1992 on the file of the Subordinate Judge, Ambasamudram, in
\nconfirming the judgment and decree dated 20.12.1989 passed in O.S.No.270 of 1983
\non the file of the Additional District Munsif, Ambasamudram.\n<\/p>\n
!For Appellants in
\nall the Second Appeals  …Mr.S.Subbiah<\/p>\n
^For Respondents in
\nall the Second Appeals  …Mr.A.Arumugam<\/p>\n
:COMMON JUDGMENT<\/p>\n
\tS.A.Nos.740 to 743 of 1998 have been filed by the respondents\/appellants
\nas against the common judgment and decrees dated 10.02.1998 passed in A.S.No.94
\nof 1992, 96 of 1992, 95 of 1992 and 97 of 1992 by the learned Subordinate Judge,
\nAmbasamudram, in confirming the  common judgment and decrees dated 20.12.1989
\npassed in O.S.No.89 of 1982, 622 of 1982, 621 of 1982 and 270 of 1983 by the
\nlearned Additional District Munsif, Ambasamudram.\n<\/p>\n
\t2. The parties are referred to hereunder according to their litigative
\nstatus before the trial Court.\n<\/p>\n
\t3. Niggard and bereft of details, the case of the plaintiff Sankaran
\nPillai in O.S.No.89 of 1982, 622 of 1982, 621 of 1982 and 270 of 1983 as stood
\nexposited from the plaint could be precisely and concisely portrayed thus:\n<\/p>\n
\t(i) The suit properties as found set out in the schedule of the plaint
\nunder two items would denote and indicate that the first item is measuring an
\nextent of 3 cents of plot wherein there are five houses bearing Door Nos.14 15A,
\n15B and the second item is measuring an extent of another 3 cents of plot,
\nwherein there are two houses bearing Door Nos.9B and 9C.  The first defendant
\nShailappa Pillai and his wife Pappathi Ammal had no children.  The plaintiff is
\nthe owner of the suit properties.\n<\/p>\n
\t(ii) The said suit properties belonged to Papathi Ammal by virtue of she
\nhaving purchased the plots concerned as per the sale deeds Exs.A.1 and A.2,
\ndated 12.12.1949 and 10.04.1953 respectively  from out of her own income and
\nsubsequently, she raised the said five buildings by spending her own money.\n<\/p>\n
\t(iii) The first defendant happened to be her husband and hence those suit
\nbuildings came to stand in the name of the first defendant in the Property Tax
\nRegister of the Municipality concerned.  However, the first defendant had no
\nright of ownership over the suit properties.\n<\/p>\n
\t(iv) The first defendant and Pappathi Ammal had no issues, and they
\nexecuted the power deed Ex.A.3, dated 24.05.1973 in favour of the plaintiff and
\nhe was also allowed to cultivate the first defendant’s Nanja land with effect
\nfrom 13.04.1973.  The said Pappathi Ammal executed the settlement deed dated
\n05.01.1978 in favour of the plaintiff settling all her properties including the
\nsuit properties.  However, the ground floor of the house bearing Door No.15A and
\nthe upstair portions of the suit houses bearing Door Nos.15A and 15B are in the
\noccupation of the plaintiff.  The remaining portion of the suit houses are under
\nthe occupation of the tenants of the plaintiff, who has been collecting rents
\nfrom those tenants.  The first defendant with his wife Pappathi Ammal was
\nresiding in a separate house belonging to him at Alvarkurichi.  However, the
\nfirst defendant attempted to interfere with the ownership rights of the
\nplaintiff.  Hence, he filed the suit.   During the pendency of those suits, the
\nfirst defendant, Sailappa Pillai died.  Thereupon, the defendants 2 to 5 were
\nadded as legal representatives.\n<\/p>\n
\t(v) O.S.No.89 of 1982 was filed by the plaintiff Sankaran Pillai as
\nagainst the first defendant Sailappa Pillai initially for the purpose of
\ndeclaration that the  former is the owner of the suit properties and for
\ninjunction or in the alternative for possession.\n<\/p>\n
\t(vi) O.S.No.621 of 1982 was filed by the same plaintiff as against one
\nMadasamy pillai who according to the plaintiff is a tenant, for  recovery of
\npossession and for recovery of arrears of rent and mesne profits, in respect of
\nthe ground floor of Door No.15A and the upstair portion  of the suit houses
\nbearing Door Nos.15B and 15A.  The plaintiffs contention is that, at the
\ninstigation of the said Shailappa Pillai, the said tenant refused to pay the
\nrent.\n<\/p>\n
\t(vii) Similar suit O.S.No.622 of 1982 was filed by the same plaintiff as
\nagainst one Sundaram Pillai for recovery of possession and for recovery of rents
\nand mesne profits from him.\n<\/p>\n
\t(viii) Whereas the said Shailappa Pillai filed O.S.No.270 of 1983 as
\nagainst his wife Pappathi Ammal and her brother Sankaran Pillai, the plaintiff
\nand the aforesaid one Sundaram Pillai and Madasamy Pillai, for declaration of
\ntitle and for permanent injunction as against the first defendant and the second
\ndefendant, Pappathi Ammal and Sankaran Pillai not to interfere with the peaceful
\npossession and enjoyment of the said suit properties  and also not to disturb
\nthe peaceful possession of the third defendant as tenants of the plaintiff in
\nthe suit properties.\n<\/p>\n
\t4. Denying and disputing the allegations\/ averments in the plaint, the
\nfirst defendant deceased Shailappa Pillai in O.S.No.89 of 1982, during his life
\ntime filed the written statement, the gist and kernel of it, would run thus:\n<\/p>\n
\t(i) The suit plots were purchased by the first defendant from out of his
\nown income in the name of his wife Pappathi Ammal who had  no sufficient income
\nor jewels to raise money and purchase the suit properties.  The first defendant
\npurchased the plots and raised those five suit houses, which are standing in the
\nname of the plaintiff only in the Property Tax Register and he has been paying
\nthe tax.  Pappathi Ammal did not execute any settlement deed in favour of the
\nplaintiff, Sankaran Pillai.  In fact, Pappathi Ammal and the first defendant
\nconspired together and acted against the interest of the plaintiff who is in
\npossession of the suit property.  Accordingly, he prayed for the dismissal of
\nthe suit.\n<\/p>\n
\t(ii) After the death of the first defendant Shailappa Pillai, the
\ndefendants 2 to 5 were impleaded in O.S.No.89 of 1992 and thereupon, they filed
\nthe written statement highlighting that the first defendant during his life
\ntime, executed Ex.B.521, the will dated 12.06.1986 in their   farm bequesting
\nthe suit properties. Accordingly, they prayed for the dismissal of the suit.\n<\/p>\n
\t(iii) The defendants in O.S.Nos.621 and 622 of 1982 filed their separate
\nwritten statements reiterating the case of the first defendant in O.S.No.89 of
\n1982 and they would contend that they were the tenants under Shailappa Pillai
\nand there were having no connection with the plaintiff Sankaran Pillai.\n<\/p>\n
\t(iv) In O.S.No.270 of 1983, the first defendant Pappathi Ammal and the
\nsecond defendant Sankaran Pillai filed the written statement to the effect that
\nthe first defendant alone purchased the suit plots as found set out in O.S.No.89
\nof 1982 in her own name from out of her own sources and she raised the
\nconstructions thereon.  The defendants 3 and 4, the tenants are colluding with
\nShailappa Pillai and creating trouble.  Accordingly, they prayed for the
\ndismissal of the suit.\n<\/p>\n
\t5. Based on the above pleadings, the trial Court framed the relevant
\nissues in the four suits and joint trial was conducted.\n<\/p>\n
\t6. During trial, P.W.1 was examined and Exs.A.1 to A.49 were marked on the
\nside of the plaintiff.  D.W.1 to D.W.3 were examined and Exs.B.1 to B.537 were
\nmarked on the side of the defendants.\n<\/p>\n
\t7. Ultimately, the trial Court decreed the suits in O.S.Nos.89 of 1982,
\n621 of 1982 and 622 of 1982 and dismissed the suit in O.S.No.270 of 1983.\n<\/p>\n
\t8. Being aggrieved by and dissatisfied with, the common judgment and
\ndecrees passed by the trial Court, A.S.Nos.94 to 97 of 1992 were filed before
\nthe Subordinate Court, Ambasamudram, which Court also confirmed the common
\njudgment and decrees of the trial Court.\n<\/p>\n
\t9. Challenging the common judgment and decrees of both the Courts below,
\nthe plaintiffs in respective original suits filed these second appeals on the
\nfollowing main grounds among others:\n<\/p>\n
\tBoth the Courts below fell into error in disbelieving the case of
\nShailappa Pillai and deciding in favour of Sankaran Pillai.  The trial Court has
\nnot properly framed the issues and the appellate Court neglected to recast the
\nissues for better appreciation.  The first appellate Court has not framed
\nproperly the point for consideration.  The first appellate Court has not
\nproperly applied the law relating to Benami transactions.  The original
\ndocuments relating to the suit properties were produced before the Court only by
\nthe legal representatives of the deceased Shailappa Pillai and that fact was not
\nnoticed by both the Courts below.  The consideration for purchasing the suit
\nproperties were paid by Shailappa Pillai and the property was purchased only in
\nthe name of Pappathi Ammal and that Pappathi Ammal had no funds of her own
\neither to purchase the plot or raise constructions thereon.  Since the
\nsuperstructures are standing in the name of the deceased Shailappa Pillai, the
\nsuit properties even if held to be not the exclusive properties of Shailappa
\nPillai, it should be treated as the joint properties of both Pappathi Ammal and
\nthe deceased Shailappa Pillai.  Pappathi Ammal had no right to execute the
\nsettlement deed in favour Sankaran Pillai.  Exs.A.9 and A.10 were not properly
\nconsidered by both the Courts below.  The interpretation of documents, Exs.A.9
\nand A.10 by the first appellate Court is not tenable.  Both the Courts below
\nfailed to hold that the factum of  execution of Ex.A.5 by the deceased Pappathi
\nAmmal was not proved.  Pappathi Ammal was admittedly an illiterate and she did
\nnot know how to read and write and in such a case, both the Courts below should
\nhave expected clinching evidence from Sankaran Pillai’s side to prove the
\ngenuineness of Ex.A.5.  The first appellate Court’s finding on the will,
\nEx.B.521 is nothing but perverse as on Shailappa Pillai’s side, his legal
\nrepresentatives clearly proved the will by examining one of the attesting
\nwitnesses to it.  Accordingly, both the Courts below failed to hold that the
\ntenants concerned were tenants of Shailappa Pillai and not Sankaran Pillai and
\nPappathi Ammal.  Accordingly, they prayed for setting aside the common judgment
\nand decrees of both the Courts below.\n<\/p>\n
\t10. At the time of admitting these second appeals, my learned Predecessor
\nframed the following substantial questions of law:\n<\/p>\n
\t“1. Whether the vacant land purchased by the husband benami in the name of
\nhis wife, but constructions put up by him and registered all other service
\nconnections standing in the name of the husband could make it that the
\ntransaction by purchasing the vacant land in the name of his wife could be a
\nbenami transaction?\n<\/p>\n
\t2. Whether when the property was dealt with by the husband in his own name
\nwould be a proof that the husband had no intention to benefit his wife?\n<\/p>\n
\t3. Whether when superstructures were built up by a person in his own land
\non the land belonging to another will make the superstructures also belonging to
\nthe land owner or both the land owner as well as the owner of the superstructure
\nwill take the properties as co-owners?\n<\/p>\n
\t4. Whether when the alleged settlement deed is disputed is it not
\nnecessary that the alleged settlement deed should be proved by calling atleast
\none of the attestors to prove the alleged settlement deed?\n<\/p>\n
\t5. Whether when an attestor to the will had been examined and when the
\nevidence is otherwise natural a mere stray answer would make his evidence as
\nunreliable and the will had not been properly proved?”\n<\/p>\n
\t11. The substantial questions of law are taken together for discussion as
\nthey are interlinked with one another.\n<\/p>\n
\t12. For convenience sake, the parties are referred to hereunder as
\nShailappa Pillai group and Sankaran Pillai group.\n<\/p>\n
\t13. A re’sume’ of facts absolutely necessary and germane for the disposal
\nof these second appeals would run thus:\n<\/p>\n
\tVirtually this suit is between the deceased husband and his deceased wife.
\nI would be justified in describing this suit in that manner, in view of the fact
\nthat on the one side Shailappa pillai’s beneficiaries are contesting the matter
\nand on the other side the deceased Pappathiammal’s settlee viz., Sankaran Pillai
\nand consequent upon Sankaran Pillai’s death, his sons are contesting the matter.
\nAs such, virtually the beneficiaries under the will, Ex.B.521 do claim that they
\nstepped into the shoes of Shailappa Pillai, whereas the legal heirs of Sankaran
\nPillai would claim that they stepped into the shoes of Pappathiammal and as such
\nthis suit is between the deceased husband and his deceased wife, who were at
\nlogger heads during their lifetime.\n<\/p>\n
\t14. The unassailable facts are that Shailappa Pillai during his life time
\nowned properties and it so happened that Ex.A1, dated 12.12.1949 and Ex.A2 dated
\n10.04.1953, the sale deeds emerged relating to the suit plot areas in favour of
\nPappathi Ammal executed by her respective vendors.  Subsequently, the
\nsuperstructures were raised in those plots.  On<\/p>\n
 the one hand, it is the contention of Shailappa Pillai that from out of his own
\nincome he raised such superstructures, whereas it is the contention  on the side
\nof Pappathiammal that the superstructures were raised by selling her jewels and
\nalso from out of her own sources.  However, the superstructures do stand in the
\nname of Shailappa Pillai in the property tax register of the municipality
\nconcerned.\n<\/p>\n
\t15. The learned counsel for Sankaran Pillai group cited the following
\ndecisions:\n<\/p>\n
\ti) Jayadayal Poddar (Deceased) through L.Rs. and another v.  Mst. Bibi
\nHazra and others reported in AIR 1974 SC 171.\n<\/p>\n
\tii) Ponnuswamy Nadar  v. Narayanan Nadar<\/a> reported in AIR 1977 Madras 19.\n<\/p>\n
\tiii) Sm.Surasaibalini Debi v. Phanindra Mohan Majumdar<\/a> reported in 1965
\nSupreme Court 1864.\n<\/p>\n
\tiv) Krishnanand Agnihotri v. State of M.P. reported in AIR 1977 Supreme
\nCourt 796.\n<\/p>\n
\tv) Parvathi Ammal  v. Solai Ammal & Another<\/a> reported in 1997-2-L.W.908.\n<\/p>\n
\tvi) Kanagarathanammal v. Loganatha Mudaliar and another reported in AIR
\n1965 Supreme Court 271.\n<\/p>\n
The learned counsel for Sankaran Pillai group by placing reliance on those
\nprecedents would contend that the very Exs.A1 and A2 would clearly show that
\nPappathi Ammal acquired absolute right over it and the plea of benami is
\nuntenable and in respect of it he would draw the attention of this Court to the
\ndefinition of benami transaction and develop his arguments.  The aforesaid six
\ndecisions are relating to the concept “benami”.  The learned counsel for
\nSankaran Pillai group relying on the definition of benami transactions would
\nadvance his arguments that Shailappa Pillai group can never be heard to contend
\nthat Shailapa Pillai was the owner of the suit plots.  Hence, at this state, it
\nis just and necessary to consider the relevant provisions under the Benami
\nTransactions (Prohibition) Act, 1988.  Section 3 of  the Benami Transactions
\n(Prohibition) Act, 1988 is reproduced here under for ready reference:
\n\t“3. Prohibition of benami transactions.- (1) No person shall enter into
\nany benami transaction.\n<\/p>\n
\t[(2) Nothing in sub-section(1) shall apply to-\n<\/p>\n
\t(a) the purchase of property by any person in the name of his wife or
\nunmarried daughter and it shall be presumed, unless the contrary is proved, that
\nthe said property had been purchased for the benefit of the wife or the
\nunmarried daughter;\n<\/p>\n
\t(b) the securities held by a-\n<\/p>\n
\t(i) depository as registered owner under sub-section(1) of section 10 of
\nthe Depositories Act, 1996.\n<\/p>\n
\t(ii) participant as an agent of a depository.\n<\/p>\n
\tExplanation.- The expressions “depository” and “Participants” shall have
\nthe meanings respectively assigned to them in clauses (3) and (g) of sub-section
\n(1) of section 2 of the Depositories Act, 1996].\n<\/p>\n
\t(3) Whoever enters into any benami transaction shall be punishable with
\nimprisonment for a term which may extend to three years or with fine or with
\nboth.\n<\/p>\n
\t(4) Notwithstanding anything contained in the Code of Criminal Procedure,
\n1973 (2 of 1974), an offence under this section shall be non-cognizable and
\nbailable”.\n<\/p>\n
(emphasis supplied)<\/p>\n
\t16. As such, Section 3(2)(a) of the said Act would clearly highlight that
\nso far the properties purchased by the husband in the name of the wife is
\nconcerned, it shall be presumed unless the contrary is proved that the said
\nproperty has been purchased for the benefit of the wife.  However, on the
\ncontrary it is also clear from the definition that there is no embargo for the
\nhusband to prove the benami nature of the transaction between the husband and
\nwife. The pith and marrow of the dicta as found set out in the aforesaid six
\ndecisions are only in parimateria with the view taken by me supra.  At this
\njuncture, I recollect the decision of this Court in Ammaponnammal v. Shanmugam
\nPillai<\/a>(died) and others reported in AIR 1971 MADRAS 370.  An excerpt from it
\nwould run thus:\n<\/p>\n
\t“3. Still the question remains, taking into account the relationship
\nbetween the parties, namely, husband and wife.  Whether the husband intended to
\nbenefit the wife by the purchase of the property by way of making a gift of the
\nconsideration of the property itself.  The case of the husband as referred to by
\nthe learned District Judge in his judgment is that he never intended to benefit
\nthe wife, but it was only because she requested that her name, may be put as
\nvendee in the sale deed, he agreed to do so, just to compliment her.  When the
\nrelationship  between the parties is so close, as husband and wife, the source
\nof consideration plays a minor part and the more important and significant
\nfactor will be the motive for the purchase of the property by the husband in the
\nname of the wife.  Such a motive is absolutely absent in this case except the
\nself-serving statement of the husband that he agreed to the inclusion of the
\nname of his wife in the sale deed just to compliment her.
\n\tIn all cases of such transactions, the crucial consideration is whether
\nthe husband intended, when he purchased the property in the name of the wife,
\nthat the wife should become the owner of the property or did he intend that
\nnotwithstanding the title deed standing in the name of the wife, he alone should
\nbe the owner of the property.  Undoubtedly the intention has to be gathered
\nfrom all the surrounding circumstances of the case and it is only because of
\nthese features.  Several tests have been propounded for consideration in
\ndeciding the question  of benami.  In this particular case, admittedly after the
\npurchase of the property in the name of the wife, patta was transferred in the
\nname of the wife and kist receipts stood in the name of the wife.  Certainly all
\nthese things can be explained by the fact that the person in whose name the
\ntitle deed stood was the wife and therefore these documents also stood in her
\nname.  But in cases of such close relations, none of these considerations will
\nbe of a decisive character and the entirety of the circumstances should be taken
\ninto account for coming to a conclusion.  As far as  the present case is
\nconcerned, there is one crucial admission in the evidence of the plaintiff
\nhimself, which both the courts below have completely failed to take note of.
\nThat statement of the plaintiff is:\n<\/p>\n
\t“Till 1954 I was under the impression that the lands belonged to her and
\nthat the C schedule property also belonged to her”.\n<\/p>\n
\tThe C schedule property referred to was the subject-matter of a settlement
\nby the husband in favour of the wife, for which the wife after 1954 had to file
\na suit and obtain possession from the husband.  However, as far as the present
\nsuit is concerned, the subject-matter is the lands referred to in the statement
\nof the plaintiff (extracted above) and he has clearly stated that till 1954 he
\nwas under the impression that the lands belonged to her.  This statement can be
\nexplained only on the basis that when he purchased the property under Ex.B-1 in
\n1943 in the name of the wife, he intended that the property should belong to the
\nwife and only when she left the house of the husband in 1954, he changed his
\nmind and wanted to put forward his own claim to the said property. Once the
\nintention that he wanted to benefit the wife and he wanted the wife to be the
\nowner of the property, at the time when the property was purchased, is
\nestablished clearly and indisputably, no amount of change of intention
\nsubsequently will have the effect of divesting the title which the wife acquired
\nunder the document under which the property was purchased in her name.
\nTherefore, the admission of the plaintiff in this case as extracted already, is
\nthe clearest possible evidence of his intention that the wife should be the
\nowner of the property and if so, the case set up by the plaintiff of benami
\nfails miserably and totally.  It is this aspect which the courts below have
\nfailed to bear in mind.””\n<\/p>\n
\t17. It is therefore clear that if a husband purchases a property in the
\nname of his wife intending that wife should be benefited then it amounts to
\nvirtually a gift given in favour of the wife and it could be treated as the
\nproperty of the wife.  However, the learned counsel for Shailappa Pillai group
\nwould contend that Shailappa Pillai might have felt that there would have been
\ninterference from his relatives and hence he might have purchased it in the name
\nof his wife and that it would not confer any right on Pappathi Ammal.\n<\/p>\n
\t18. Be that as it may, at the time of purchasing the properties as per
\nExs.A1 and A2, both of them were living together and even after arisal of the
\ndispute between the husband and wife no steps have been taken by the husband to
\nget the plot area transferred in his name.  As per Section 3(2)(a) of the Benai
\nTransactions (Prohibition) Act, 1988 the legal principle enures to the benefit
\nof Pappathi Ammal.  But on the other hand in reality what happened is that the
\nsuperstructures came to be registered in the name of Sailappa Pillai in the
\nproperty tax register.\n<\/p>\n
\t19. The learned counsel for Sankaran Pillai group would contend that
\nmerely because superstructures are standing in the name of Shailappa Pillai in
\nthe property tax register, there is no hard and fast rule that it should be
\ndeemed to be his property.  He would also contend that once the land belongs to
\nthe wife, whatever be the superstructures raised thereon should be deemed to be
\nthat of the wife and the contrary should be proved by clinching evidence of
\nSankaran Pillai group and that they failed to prove.\n<\/p>\n
\t20. At this context, the learned counsel for Sankaran Pillai group would
\ncite the Judgment of this Court in S.A.No.316 of 1983 dated 12.04.1996.
\nHowever, the learned counsel for Shailappa Pillai group would cite the decision
\nof the Hon’ble Apex Court in R.V.E.Venkatachala Gounder v. Arulmigu
\nViswessaraswami & V.P Temple and<\/a> another reported in 2003(8) SCC 4548.  The said
\ndecision would show that the Judgment cited by the learned counsel for Sankaran
\nPillai group was reversed in the appeal by the Hon’ble Apex Court.  Paragraph
\nNo.26 of the aforesaid decision is extracted hereunder for ready reference:
\n\t“26.  From the other documents produced by the appellant i.e. the account
\nbooks and Exhibit A-34 rent note, it is proved that the tenant had always been
\ntreating the appellant as the landlord and paying the rent to him.  Only after
\n1969 the tenant started paying rent to the temple treating it to be the
\nlandlord.  In the property tax register the appellant and prior to that his
\npredecessors have been shown to be the owners.  An entry in the municipal record
\nis not evidence of title.  The entry shows the person who was held liable to pay
\nthe rates and taxes to the municipality.  The entry may also, depending on the
\nscope of the provision contemplating such entry, constitute evidence of the
\nperson recorded being in possession of the property.  Such entries spread over a
\nnumber of years go to show that the person entered into the records was paying
\nthe tax relating to the property and was being acknowledged by the local
\nauthority as the person liable to pay the taxes.  If the property belonged to
\nthe temple, there is no reason why the temple would not have taken steps for
\nhaving its own name mutated into the municipal records and commencing payment of
\ntaxes or claimed exemption from payment of taxes if the charity was entitled
\nunder the law to exemption from payment of taxes.  The temple has not been able
\nto produce any evidence, oral or documentary, to prove its title to the
\nproperty.  Only because the tenant attorned to the temple and started paying
\nrent to the temple in 1969 or that the temple paid the property tax to the
\nMunicipal Committee after 1969 does not establish its title to the property in
\nquestion.  This documents are not of much evidentiary value as these documents
\ncame in existence after the dispute had arisen between the parties.  In the
\nabsence of any other lawful claimant, the appellant on the strength of the
\ndocuments produced by him was rightly held to be the owner by the courts below
\nthe High Court.  Attornment by the tenant in favour of the temple was also
\nrightly held to be invalid.  The appellant, in our opinion, would be entitled to
\nrecover possession as well as the arrears of rent”.\n<\/p>\n
\t21. Placing reliance on it, the learned counsel for Shailappa Pillai group
\nwould argue that the tax receipts speaking in the name of Shailappa Pillai
\ncannot be labelled or termed as worthless documents or documents which would not
\nenure to the benefit of Sailappa Pillai to contend that he is the owner of it,
\nwhereas the learned counsel for Sankaran Pillai group would contend that even in
\nthe Hon’ble Apex Court’s Judgment, there is nothing to show that simply because
\nthe tax receipts and the property tax registers speak in the name of a
\nparticular person, he should be deemed to be the title holder.  The truth lies
\nsomewhere in between them their two rival arguments.  What the Hon’ble Apex
\nCourt highlighted in the cited decision is that such entries in the property tax
\nregister and tax receipts are having probative force of its own and cannot be
\nsimply be slighted or disregarded as worthless piece of documents.  Here it is
\nnot that some stray tax receipts have been produced in the name of Shailappa
\nPillai.\n<\/p>\n
\t22. On the side of Shailappa Pillai group voluminous documents Ex.B270 to
\nB466 were marked and those are relating to the superstructures stood in the name
\nof Sailappa Pillai and that he had been paying the house tax continuously for
\nseveral decades.  As such those documents cannot simply be described as stray
\ndocuments or cooked up documents which emerged for the purpose of buttressing
\nthe claim of Sailappa Pillai.  These documents should be read in conjunction
\nwith the Hon’ble Apex Courts verdict in the decision cited supra.\n<\/p>\n
\t23. It is the admitted case of both sides that bad blood started running
\nin the relationship between the husband and the wife and several years before
\nthe death of Pappathi Ammal itself, there arose misunderstanding between the
\nhusband and the wife and she was taking the support of her brother-in-law and
\nvirtually she died, while she was staying along with her brother Sankaran
\nPillai.  In fact, in Ex.B521, the will also, Shailappa Pillai himself set out
\nthe fact that both the husband and the wife could not see eye to eye; each one
\nwas trying to cut the ground under the feet of the other; they were at logger
\nheads and they were at daggers drawn.  When such was the position, it is not
\nknown as to what steps Pappathi Ammal had taken during her lifetime to get the
\nname of Sailappa Pillai removed from the property tax register relating to the
\nsuperstructures.  In fact, during the lifetime of Pappathiammal itself,
\nlitigations arose and in fact she even before executing the settlement deed
\nEx.A5   dated 05.01.1978, in favour of Sankaran Pillai could have filed a suit
\nor initiated some proceedings for the purpose of getting mutated her name in the
\nproperty tax register in the place of Sailappa Pillai.  But that was not done
\nso.  Ex.B2 to 252 also would reveal that the electricity connection was in the
\nname of Sailappa Pillai only and he had been paying it not for a short time, but
\nfor several decades together.\n<\/p>\n
\t24. It is a trite proposition of law that preponderance of probabilities
\nwould govern the adjudication in civil cases.  The learned counsel for Sankaran
\nPillai group would contend that Pappathi Ammal by selling her jewels and from
\nher own source of income, raised such superstructures, for which the learned
\ncounsel for the Sailappa Pillai group would correctly question it by arguing
\nthat had really Pappathi Ammal from out of the sale proceeds of her jewels and
\nalso from her other own source of income, she would not have allowed her husband
\nto have his name in the property tax register relating to the superstructures
\nand also for the electricity connection in his name.\n<\/p>\n
\t25. The learned counsel for Sailappa Pillai group drew the attention of
\nthis Court to the trial Court’s finding at paragraph No.24  of the Judgment and
\nadvanced his arguments that the trial Court itself gave a finding that the said
\nPappathiammal was very shrewd and particular regarding her income and accounts
\nand that such a lady might not have simply allowed her husband to project
\nhimself as the owner.\n<\/p>\n
\t26. The learned counsel for Sankaran Pillai group would argue that the
\noral evidence has been adduced on their side through P.W.1, viz., Sankaran
\nPillai to the effect that Pappathiammal actually raised superstructures from her
\nown source.  Except the evidence of P.W.1, Sankaran Pillai, there is no other
\nclinching evidence to show that it was Pappathiammal, who raised such
\nsuperstructures during the year 1959.  On the other hand, the Court will be
\njustified in proceeding on documentary evidence rather than on the interested
\ntestimony of the parties.  As such, the deposition of P.W.1 is his ipse dixit.
\nNo doubt, the learned counsel for Sankaran Pillai group would point out that the
\nevidence of R.W.1, Sorimuthu, who at that time was aged about 26 years could not
\nbe believed.  No doubt on both sides, when clinching evidence pointing towards
\nthe very factum source of income emanated for raising superstructures is
\nlacking, then the Court has to go by the available documantary evidence only and
\nnot based on the interested oral testimonies.  To the risk of repetition without
\nbeing tautologous, I would highlight that even though it is not the case on the
\nside of Sankaran Pillai group that Shailappa Pillai was only an agent of
\nPappathi Ammal, who was owning properties in her name, nonetheless the admitted
\nevidence is to the contrary.  P.W.1, himself admitted that he was the tenant
\nunder Shailappa Pillai and cultivated his lands and Shailappa Pillai instituted
\nsuit for recovery of rents from him and in such a case the preponderance of
\nprobabilities are in favour of the contention on the side of Shailappa Pillai
\ngroup to the effect that Shailappa Pillai had sufficient funds to raise
\nsuperstructures and it cannot simply be held that Shailappa Pillai as the
\nhusband of Pappathiammal acted as her agent and raised constructions by using
\nthe finance of his wife.\n<\/p>\n
\t27. As such, considering the pros and cons of the matter, I am of the
\nconsidered opinion that the plot belonged to the wife Pappathiammal and the
\nsuperstructures were raised from out of her funds of the husband Shailappa
\nPillai and as such they have had joint ownership over the entire suit properties
\nboth the plots area and the superstructures.  On hearing the aforesaid argument
\nof the learned counsel for the Sankaran Pillai group, my mind is redolent with
\nthe maxim “Quicquid plantatur solo solo cedit” (Whatever is affixed to the soil
\nbelongs thereto).  This has to be understood in proper perspective and not
\nblindly.\n<\/p>\n
\t28. The question might arise as to how to view when the plot belongs to
\nthe wife and the superstructures belongs to the husband?  Here, indisputably and
\nindubitably for a pretty long time without any partition during their lifetime,
\nthe matters went on.  In this factual matrix, different proportion cannot be
\nfixed relating to their rights as they happened to be husband and wife, when the
\nsuperstructures emerged they lived together and thereafter also.  In such a case
\nthe proportion should be equal.  In such a case it should be held that both the
\nhusband and the wife had joint interest in the entire suit properties, which
\ncomprised both the plots and the superstructures accordingly in equal
\nproportion.\n<\/p>\n
\t29. The next phase analysis is as to whether Ex.A5, the settlement deed
\nand Ex.B.521, the will are genuine documents.  The learned counsel for Sailappa
\nPillai group would impeach the settlement deed on the main ground that at the
\ntime of executing the settlement deed, Pappathi Ammal was an old, illiterate
\nlady and in such a case the doctrine of ‘nonest factum’ would come in to
\noperation and there are catena of decisions to the effect that such sort of
\nexecution of settlement deeds by illiterate ladies, should be called upon to be
\nproved beyond reasonable doubts by the Courts.\n<\/p>\n
\t30. The learned counsel for Sailappa Pillai group would also draw the
\nattention of this Court to Section 122 of Transfer of Property Act and develop
\nhis arguments that even though the nomenclature ‘settlement deed’ is assigned to
\nEx.A5, nonetheless in stricto sensu, it is a gift deed requiring attestation by
\ntwo persons.  In accordance with Section 68 of the Indian Evidence Act, the
\nattesting witnesses should have been examined; but it was not done so, but on
\nthis aspect, the trial Court failed to consider the case.  The first appellate
\nCourt also fell into error in holding that Ex.A5, the settlement deed required
\nno attestation and consequently Section 68 of the Indian Evidence Act was not
\napplicable.\n<\/p>\n
\t31. Whereas the learned counsel for Sankaran Pillai would submit that
\nEx.A5 settlement deed is covered under both the definitions of settlement as
\nwell as gift.  Over and above that he would also develop his arguments that as
\nper Section 17 of the Registration Act and as per Transfer of Property Act,
\nthere is no necessity that a particular document should come within anyone of
\nthe recognised legal forms; so far Ex.A5 is concerned, there is transfer of
\nownership of the property from Pappathiammal to Sankaran Pillai and it is a
\nregistered document and that it satisfied the requirements of Section 17 of the
\nRegistration Act and nothing more is required.  I would atonce observe that such
\nan argument cannot be countenanced.  It is open for Sankaran Pillai group to
\nargue that it comes under the definition of both settlement as well as gift, but
\nit would not lie in their mouth to contend that even though a document may not
\nbe come under any one of the recognised forms under the legal procedures, it
\ncould be treated as a valid document.  Necessarily, when a document is executed
\ntransferring the ownership right to another, it should be in anyone of the
\nrecognised legal modes.  No more elaboration in this regard is required.  Be
\nthat as it may, now we are not concerned with the form of the document but
\nconcerned with the validity of Ex.A5.  To the risk of repetition, I would stress
\nupon the fact that the preponderance of probabilities would govern the
\nadjudication in civil cases and robust common sense is required to adjudge in a
\ncase as to whether a particular document might have been validly executed by one
\nperson in favour of another.  Here, there is overwhelming evidence to prove that
\nduring the lifetime of Pappathiammal as well as Shailappa Pillai and
\nconsiderable time before the emergence of Ex.A5, the settlement deed both were
\nnot in good relationship.  In fact, the grievance of Shailappa Pillai is that
\nPappathiammal was under the influence of her brother and she was not obeying
\nShailappa Pillai’s directions.  In fact, the learned counsel for Sankaran Pillai
\ngroup would draw my attention to Ex.B.521, the will and point out that even as
\nper that will, which is relied on by the other side, Sankaran Pillai and the
\ndeceased Pappathiammal were together and they were acting against Shailappa
\nPillai’s interest.  Hence, in these circumstances, there is no point in
\nartificially creating doubt as though Sankaran Pillai might have beguiled,
\nhoodwinked, bamboozled her into some wrong notion and got her signatures and
\nprepared Ex.A5 falsely.  In fact, Shailappa Pillai himself during his lifetime
\nfiled the suit in O.S.No.270 of 1983 as against both Sankaran Pillai and
\nPappathiammal and they have filed jointly written statement as against Shailappa
\nPillai and in such a case it would clearly evince and evidence that in all
\nprobabilities, Pappathiammal would have executed the settlement deed consciously
\nand voluntarily in favour of her brother and that too in the absence of any
\nchildren born to Shailappa pillai and Pappathiammal.  As such, in this proven
\nfactual circumstances, I am having no doubt about the factum of Pappathiammal
\nhaving executed Ex.A5, the settlement deed in favour of her brother.\n<\/p>\n
\t32. Once again, some academic discussion is required at this juncture.
\nWhether this deed, Ex.A5, the settlement deed could be termed as settlement in
\nstricto sensu at all and whether Sankaran Pillai could be taken as dependant of
\nPappathiammal.  The normal rule is that a settlement deed could be executed by
\nsettlor in favour of settlee, who is depending upon the former.  In this
\nconnection, I could recollect the decision of this Court in the Chief
\nControlling Revenue Authority, Board of Revenue, Madras v. P.A.Muthukumar<\/a>
\nreported in AIR 1979 Madras 5.  An excerpt from it wound run thus:
\n\t“5. The word ‘settlement’ has been defined in the Indian Stamp Act, but
\nnot the word ‘Trust’. Sec.2(24)(b) defined the word ‘settlement’ as follows:
\n“Settlement’ means any non-testamentary disposition in writing of movable or
\nimmovable property, made for the purpose of distributing property of the settlor
\namong his family or those for whom he desires to provide or for the purpose of
\nproviding for sons persons dependent on him”.\n<\/p>\n
\t6. We are omitting clauses (a) and (c) of Sub-Sec.(24) of Sec.2 of the
\nAct, for, they are not relevant for the purpose. According to Sec.3 of the
\nIndian Trusts Act, 1882, a ‘trust’ is an obligation annexed to the ownership of
\nproperty, and arising out of a confidence reposed in and accepted by the owner,
\nor declared and accepted by the owner, or declared and accepted by him for the
\nbenefit of another, or of another and the owner.  The instrument in question
\ndoes not in our view purport to distribute property of the settlor among the
\nmembers of his family nor did he evince and unequivocal desire to provide
\nproperty for some person dependent on him. While interpreting the word
\n‘settlement’ in S.2(24) of the Indian Stamp Act, it appears to us that the
\nemphasis should be on the intention of the author of the trust to distribute the
\nproperty among members of his family or to those who are near and dear to him.
\nIn the absence of a  demonstrative exhibition of that intention to distribute
\nhis property among such members or relatives of his, it cannot be said
\nmechanically by the use of the expressions such as ‘his heirs’ or ‘his minor
\nson’ etc. in a document that such is the intention of the author.
\n… … …\n<\/p>\n
\tWe have already made it clear, that the quintessence of the definition of
\nthe word ‘settlement’ in Sec 2(24)(b) of the Indian Stamp Act is that the
\nproperty should be distributed among the members of the family of the author of
\nthe trust or should be ordained to be given to those near and dear to him.  In
\nthe absence of any such clause express or implied to be culled out by necessary
\nimplication from out of the instrument to conclude about distribution of
\nproperty, either movable or immovable among the settlor’s heirs or relatives, it
\nwould be difficult to hold that such an instruments should be treated as a
\nsettlement”.\n<\/p>\n
However, in this case, there is possibility of Sankaran Pillai group arguing,
\nthough not argued to the effect that the brother of Pappathiammal could be taken
\nas one dependant upon her and in fact he was also cultivating the land under her
\nand in such a case he could be treated as one dependent upon her.  I make it
\nclear that this is not an argument forthcoming from the side of Sankaran Pillai
\ngroup, but the Court itself suo motu apply its reasoning and finds that even if
\nEx.A5 is technically viewed, yet by treating Sankaran Pillai as dependant of the
\ndeceased Pappathiammal.  Ex.A5 can be taken to be valid.  In such view of the
\nmatter for settlement deed no two attesting witnesses are absolutely necessary
\nand hence it need not be proved strictly in accordance with Section 68 of the
\nIndian Evidence Act as observed by the first appellate Court.  However, I would
\nlike to point out that barely because a document requires no attestation that it
\ndoes not mean that barely it should be taken as a genuine document.\n<\/p>\n
\t33. However, in this case in view of the probabilities as discussed by me
\nsupra, I do not incline to doubt the genuineness of the settlement deed.\n<\/p>\n
\t34. The next phase of the discussion is on Ex.A521, the will. The learned
\ncounsel for Shailappa Pillai group would draw the attention of this Court to the
\nevidence of D.W.2, who clearly and categorically deposed that he attested the
\nwill executed by Sailappa Pillai.  The first appellate court fell into error in
\nassuming as though the one other witness was not examined and that there were no
\nadequate explanations for that.  But the learned counsel for Sailappa Pillai
\nwould clearly draw the attention of this Court to the last sentence of the
\ndeposition of D.W.2, who categorically and clearly deposed that the one other
\nwitness died and that it was not challenged by the other side.  As such the
\nrequirements of the law was fully satisfied in proving the will.  What are all
\nthe probabilities which I attributed for countenancing that Ex.A5 is a valid
\ndocument, the same probabilities are applicable in favour of upholding the
\nvalidity of the will also.\n<\/p>\n
\t35. The learned counsel for Sankaran Pillai group cited the following
\ndecisions:\n<\/p>\n
\ti) Suguna Bai v. Muniammal<\/a> @ Dhanalakshmi and others reported in (1996)1-
\nM.L.J.-596.\n<\/p>\n
\tii) Govindan Chettiar(Died) v. Akilandam alias Seethalakshmi and 24 others
\nreported in 1997-3-L.W.673.\n<\/p>\n
\tiii) Kashibai w\/o. Lachiram & Another v. Parwatibai w\/o.Lachiram  others
\nreported in 1996 -1-L.W.317.\n<\/p>\n
\tiv) Govindaraju(Died) and others v. Rathinammal and others reported in
\n2004(3) CTC 9.\n<\/p>\n
\tv) Smt. Kalawati Devi v. Parmanand Mandal and another reported in AIR 2006
\nPATNA 22.\n<\/p>\n
\tvi) R.V.E.Venkarachala Gounder  v. Arulmigu Viswesaraswami & V.P. Temple<\/a>
\nreported in AIR 2003 SUPREME COURT 4548.\n<\/p>\n
\tvii) Arulmigu Viswerarswami and Veeraghava Perumal Temples rep. by its
\nExecutive Officer, Tiruppur, Coimbatore District. v. R.V.E.Venkatacha Gounder
\nand Another<\/a> reported in 1996 TNLJ P.219.\n<\/p>\n
All those decisions are on the well settled legal proposition that a will should
\nnecessarily be proved strictly as per Section 68 of the Indian Evidence Act.
\nThere is no quarrel over such a proposition.  But my finding is that here
\nSailappa Pillai group clearly discharged their burden in proving the will.  Over
\nand above that the learned counsel for Sailappa Pillai group cited the decision
\nin Pentakota Satyanarayana & others v. Pentakota Seetharatnam & others<\/a> reported
\nin 2006-2-L.W.658.  An excerpt from it would run thus:\n<\/p>\n
\t“23. … Section 68 of the Indian Evidence Act, 1872, deals with proof of
\nexecution of document required by law to be attested. This section lays down
\nthat if the deed sought to be proved is a document required by law to be
\nattested and if there be an attesting witness alive and subject to process of
\nthe Court and capable of giving evidence, he must be called to prove execution.
\nExecution consists in signing a document written out, read over and understood
\nand to go through the formalities necessary for the validity of legal act.
\nSection 63 of the Indian Succession Act gives meaning of attestation as under:-
\n\t“Section 63: Execution of unprivileged will,- Every testator, not being a
\nsoldier employed in an expedition or engaged in actual warfare, (or an airman so
\nemployed or engaged) or a mariner at sea, shall execute his will according to
\nthe following rules:\n<\/p>\n
\t(a) The testator shall sign or shall affix his mark to the will, or it
\nshall be signed by some other person in his presence and by his direction.\n<\/p>\n
\t(b) The signature or mark of the testator, or the signature of the person
\nsigning for him, shall be so placed that it shall appear that it was intended
\nthereby to give effect to the writing as will.\n<\/p>\n
\t(c) The will shall be attested by two or more witnesses, each of whom has
\nseen the testator sign or affix his mark to the will or has seen some other
\nperson sign the will, in the presence and by the direction of the testator, or
\nhas received from the testator a personal acknowledgement of his signature or
\nmark, or of the signature of such other person; and each of the witnesses shall
\nsign the will in the presence of the testator, but it shall not be necessary
\nthat more than one witness be present at the same time, and no particular form
\nof attestation shall be necessary.”\n<\/p>\n
\t24. It is clear from the definition that the attesting witness must state
\nthat each of the two witnesses has seen the executor sign or affix his mark to
\nthe instrument or has seen some other persons sign the instrument in the
\npresence and by the direction of the executant. The witness should further state
\nthat each of the attesting witnesses signed the instrument in the presence of
\nthe executant. These are the ingredients of attestation and they have to be
\nproved by the witnesses. The word ‘execution’ in Section 68 includes attestation
\nas required by law.\n<\/p>\n
\t25. A perusal of Ex.B9 (in original) would show that the signatures of the
\nRegistering Officer and of the identifying witnesses affixed to the registration
\nendorsement were, in our opinion, sufficient attestation within the meaning of
\nthe Act. The endorsement by the sub-register that the executant has acknowledged
\nbefore him execution did also amount to attestation. In the original document
\nthe executants signature was taken by the sub-registrar. The signature and thumb
\nimpression of the identifying witnesses were also taken in the document. After
\nall this, the sub-registrar signed the deed. Unlike other documents the Will
\nspeaks from the death of the testator and so, when it is propounded or produced
\nbefore a Court, the testator who has already departed the world cannot say
\nwhether it is his Will or not and this aspect naturally introduces an element of
\nsolemnity in the decision of the question as to whether the document propounded
\nis proved to be the last Will and the testament of departed testator.\n<\/p>\n
\t26. In the instant case, the propounders were called upon to show by
\nsatisfactory evidence that the Will was signed by the testator, that the
\ntestator at the relevant time was in a sound and disposing state of mine, that
\nhe understood the nature and effect of the dispositions and put his signature to
\nthe document on his own freewill. In other words, the onus on the propounder can
\nbe taken to be discharged on proof of the essential facts indicated above. It
\nwas argued by learned counsel for the respondent that propounders themselves
\ntook a prominent part in the execution of the Will which confer on them
\nsubstantial benefits. In the instant case, the propounders who were required to
\nremove the said suspicion have let in clear and satisfactory evidence. In the
\ninstant case, there was unequivocal admission of the Will in the written
\nstatement filed by P.Srirammurthy. In his written statement, he has specifically
\naverred that he has executed the Will and also described the appellants as his
\nsons and Alla Kantamma as his wife as the admission was found in the pleadings.
\nThe case of the appellants cannot be thrown out. As already noticed, the first
\ndefendant has specifically pleaded that he had executed a Will in the year 1980
\nand such admissions cannot be easily brushed aside.  However, the testator could
\nnot be examined as he was not alive at the time of trial.  All the witnesses
\ndeposed that they had signed as identifying witnesses and that the testator was
\nin sound disposition of mind.  Thus, in our opinion, the appellants have
\ndischarged their burden and established that the Will in question was executed
\nby Srirammurthy and Ex.B9 was his last will.  It is true that registration of
\nthe Will does not dispense with the need of proving, execution and attestation
\nof a document which is required by law to be proved in the manner as provided in
\nSection 68 of the Evidence Act.  The Registrar has made the following
\nparticulars on Ex.B9 which was admitted to registration, namely, the date, hour
\nand place of presentation of document for registration, the signature of the
\nperson admitting the execution of the Will and the signature of the identifying
\nwitnesses.  The document also contains the signatures of the attesting witnesses
\nand the scribe.  Such particulars are required to be endorsed by the Registrar
\nalong with his signature and date of document.  A presumption by a reference to
\nSection 114 of the Evidence Act shall arise to the effect that particulars
\ncontained in the endorsement of registration were regularly and duly performed
\nand are correctly recorded.  In our opinion, the burden of proof to prove the
\nWill has been duly and satisfactorily discharged by the appellants.  The onus is
\ndischarged by the propounder adducing prima facie evidence proving the
\ncompetence of the testator and execution of the Will in the manner contemplated
\nby law.  In such circumstances, the onus shift to the contestant opposing the
\nWill to bring material on record meeting such prima facie case in which event
\nthe onus shift back on the propounder to satisfy the court affirmatively that
\nthe testator did know well the contents of the Will and in sound disposing
\ncapacity executed the same”.\n<\/p>\n
\t36. This is virtually a recent decision on the subject.  In fact, the
\nHon’ble Apex Court has clearly laid down the law to the effect that the
\nRegistering Officer himself could be taken as one of the attesting witnesses and
\nthe presumption as per illustration (e) appended to Section 114 of the Indian
\nEvidence Act also enures to the benefit of the propounders of the will and it
\nhas been held that the genuineness of such registered will could be presumed
\nalso.  Hence, I am having no hesitation to hold that Ex.B.521, the will is a
\ngenuine one.  Further, there are also evidence in support of such a finding for
\nthe reason  that during the lifetime of Shailappa Pillai himself he instituted
\nthe suit in O.S.No.270 of 1983 as against Pappathiammal and the will emerged
\nduring the year 1986, whereas he died two years thereafter and this is also a
\nregistered will, wherein he clearly spelt out as to what necessitated him to
\nexecute the will.  In fact, the will emerged after a few days after the death of
\nPappathiammal.  All these circumstances would further fortify and buttress the
\nplea of Sailappa Pillai group concerning the genuineness of the will.  Both the
\nCourts below without adverting the legal points highlighted supra misdirected
\nthemselves and simply decided the matter in favour of Sankaran Pillai group.\n<\/p>\n
\t37. The trial Court in paragraph Nos.26,27,28 and 30 discussed the points
\nin a one sided manner without considering the pros and cons of the matter.  In
\nfact, the trial Court finds fault with Sailappa Pillai as though earlier he made
\nadmission in various documents executed by him in favour of his wife averring
\nthat his wife had separate properties, whereas in the will, Ex.B521, he stated
\notherwise and that it should not be believed.  The approach of the Court is
\ntotally erroneous.  The Court should have looked for independent evidence,
\nrelating to  raising of superstructures, when documentary evidence relating to
\nraising of superstructures is positive and conveys a state of legal position,
\nthen contrary to it, the Court is not expected to resort to any ratiocination of
\nits own to decide a case in favour of one party alone.  Here, the trial Court
\nwent on finding fault with Shailappa Pillai’s attitude forgetting a moment that
\nabsolutely there is no positive evidence to show that Pappathiammal had
\nsufficient income to raise the superstructures.  Quite contrary to the clinching
\nevidence available as discussed supra relating to the will, Ex.B521, the trial
\nCourt and the first appellate Court held as though the will was not a genuine
\none.  By no stretch of imagination by applying any standard the findings of both
\nthe Courts below could be countenanced as something akin to law at all and as
\nsuch those decisions are perverse warranting interference.\n<\/p>\n
\t38. At this contest, it has to be viewed as what could be done in this
\ncase.  The Sailappa Pillai group would contend that the entire property belongs
\nto them, whereas Sankaran Pillai group would claim that the entire suit property
\nbelongs to them.  How to resolve this conflicting claims.  My above findings
\nrelating to the joint nature of the entire suit property would clearly come into
\noperation for resolving this dispute.  Even though, the settlement deed was
\nexecuted by Pappathiammal for the entire property and similarly Shailappa Pillai
\nexecuted the will relating to the entire property to his beneficiaries,
\nnonetheless both should be understood to the effect that they only transferred
\ntheir respective rights in the suit property.  As has been already highlighted
\nsupra Sailappa Pillai and Pappathiammal had joint interest in the suit
\nproperties and accordingly the present claimants under them also should share
\nthe suit property  as two groups equally and the proper course is for them to
\ninstitute a partition suit.  Accordingly, in the suit to be instituted by either
\nof the groups, each group would be entitled to 50% of the suit property and
\naccordingly they could get their remedy in the way known to law.  There in that
\nsuit, the share of each group shall no more res integra as the shares are
\ndecided in this Judgment itself.\n<\/p>\n
\t39. The learned counsel for Sailappa Pillai group would submit that the
\nsuperstructures are not existing in the entire plot area.  I would disagree with
\nhis view for the reason that in the schedule of properties, under the two
\nschedules, each plot area is comprised of a small extent of three cents of land
\nonly.  In the first small plot area, there are three superstructures and in the
\nsecond small plot area, there are two superstructures.  As such, over and above
\nit cannot be stated that Pappathiammal might have had extensive vacant plot
\narea, which could be treated as her exclusive property.  The appertinent area of
\nthose buildings cannot be treated as her exclusive property.  As such, the joint
\nnature of the suit properties is implied in the facts and circumstances of the
\ncase and it cannot be held otherwise.\n<\/p>\n
\t40. Accordingly, the substantial question of law No.1 is decided to the
\neffect that even in a case of husband purchasing property from out of his own
\nsource of income in the name of his wife, if his intention turns out to be that
\nhe wanted to benefit his wife, it would be her property and in this case as per
\nEx.A1, the wife is declared to have become the owner of the plot area over
\nwhich, the superstructures raised by the husband are standing and as such the
\nquestion of benami plea does not arise in this case.\n<\/p>\n
\t41.  The substantial question of law No.2 is decided to the effect that in
\nview of the overwhelming evidence available on the side of the Shailappa Pillai
\ngroup, it is held that the superstructures were constructed by Shailappa Pillai
\nfrom out of his own money and he retained those superstructures in his name
\nwithout any intention at that time to benefit his wife.\n<\/p>\n
\t42.  The substantial question of law No.3 is decided to the effect that in
\nview of the discussion supra, even though the wife happened to be the owner of
\nthe plot area and the husband happened to be the owner of the superstructures,
\nboth by their subsequent contact allowed to be legally construed as joint
\nproperties of both the husband and the wife.\n<\/p>\n
\t43. The substantial question of law No.4 is decided to the effect that in
\nview of the preponderance of probabilities and the evidence available on record,
\nthe settlement deed is held to have been executed by Pappathiammal in favour of
\nher brother Sankaran Pillai and hence non-examination of attesting witnesses was
\nnot fatal to the case of the Sankaran Pillai group.\n<\/p>\n
\t44. The substantial question of law No.5 is decided to the effect that in
\nview of the clinching evidence of one of the attestors of the will, Ex.A9, viz;
\nD.W.2 available on record and the other attesting witness died and the said will
\nis the registered will and there are other circumstances available as per
\nevidence, there is no doubt about the genuineness of the execution of the will
\nby Shailappa Pillai in favour of the beneficiaries concerned and I could see no
\ndiscrepancy or stray wrong answer by any of the witnesses on the side of the
\nShailappa Pillai group, which would go against the genuineness of the execution
\nof the will.\n<\/p>\n
\t45. With the above observations, these appeals are disposed of.
\nAccordingly, these second appeals are partly allowed.  Correspondingly, the four
\noriginal suits shall be construed as decided.  The tenants are bound by this
\ndecision accordingly.  In the facts and circumstances of this case, there is no
\norder as to costs.  Consequently, connected Miscellaneous Petitions are closed.\n<\/p>\n
smn<\/p>\n
To<\/p>\n
1. The Subordinate Judge, Ambasamudram.\n<\/p>\n
2. The Additional District Munsif, Ambasamudram.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Sorimuthu vs Sankaran Pillai (Died) on 19 March, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19\/03\/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.740 to 743 of 1998 and C.M.P.Nos.7288 to 7290 of 1998 S.A.No.740 of 1998 1.Sorimuthu 2.Shailappan 3.Kumaravel 4.Dalavai 5.Pechimuthu … Appellants\/Appellants\/ Defendants 2 to 6 Vs 1.Sankaran […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-221313","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nSorimuthu vs Sankaran Pillai (Died) on 19 March, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sorimuthu-vs-sankaran-pillai-died-on-19-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sorimuthu vs Sankaran Pillai (Died) on 19 March, 2008 - 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