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2001 DIGILAW 724 (MAD)

P. Kalairaj v. Nallammal & Others

2001-07-03

A.SUBBULAKSHMY

body2001
Judgment : 1. Plaintiff is the appellant. 2. The case of the plaintiff is as follows: The suit properties originally belonged to the joint family comprising of the plaintiff, second defendant and their father Pappiah. The plaintiff was the only son of Pappiah through his first wife Gowrammal. After the death of Gowrammal, Pappiah married Gowrammal sister Venkatammal and she died without issues and after her death, Pappiah married the first defendant and through her the second defendant was born. The plaintiff, second defendant and their father constituted a Hindu Joint family. When the plaintiff was 10 years old, he was given training by his father Pappiah for the barber work and the plaintiff was also assisting him in his barber work and he earned from that profession and out of the earnings derived from that profession, the plaintiff and his father Pappiah saved much and from the joint exertion made by them the father purchased common half share of the suit property under registered sale deed 25.8.1953. The other common half share was purchased by the brother of Pappiah Chinnakuttian and later that was also purchased by Pappiah under the registered sale deed 11.8.1955 by the common exertion of the plaintiff and his father. Thus, the joint family comprising the plaintiff and the second defendant who was then born and Pappiah became the owner of the suit property. After purchasing the suit property for the benefit of the joint family out of the earnings made by the plaintiff and Pappiah, two tiled houses were constructed in the vacant area. The plaintiff himself constructed a tiled house in the year 1974 measuring about 18 ft. x 19 ft. with the earnings derived from the saloon work at Krishnagiri. The father Pappiah was treating, possessing and enjoying the suit property as joint family properties belonging to the plaintiff, the second defendant and himself and he never claimed the suit property as his own at any point of time. The plaintiff, the second defendant and their father had been enjoying the suit property as coparceners and exercising the rights jointly. The father Pappiah was treating, possessing and enjoying the suit property as joint family properties belonging to the plaintiff, the second defendant and himself and he never claimed the suit property as his own at any point of time. The plaintiff, the second defendant and their father had been enjoying the suit property as coparceners and exercising the rights jointly. The said Pappiah was acting as kartha and as he became too old and sick, his physical and mental condition became worse day by day and it deteriorated and he became mentally unsound and he died on 31.7.1989 leaving behind him the plaintiff and defendants 1 and 2 as his legal heirs to succeed to his 1/3rd share in the suit property. Thus, the plaintiff is entitled to 4/9th shares in the suit property as a result of death of his father. The second defendant is entitled to 4/9th share and the first defendant is entitled to 1/9th share. The plaintiff and defendants 1 and 2 have been in joint possession and enjoyment of the suit property. The first defendant appears to have mortgaged a portion of the suit property in favour of the third defendant claiming herself to be the absolute owner. The first defendant has no manner of right over the entire suit property. Pappiah was not the absolute owner of the suit property and he could not have dealt with the entire suit property. He was mentally unsound. The first defendant claims to be the absolute owner of the suit property by virtue of a registered Will alleged to have been executed by his father Pappiah who was not in sound disposing state of mind and the Will is a forged one and it was not executed by the father. The first defendant is not willing for partition of the suit property. Hence, the plaintiff filed the suit for portion and separate possession of his 4/9th share in the suit property. 3. Defendants 1 and 2 filed written statement contending as follows: The suit properties are the self acquired properties of Pappiah. The sale deed stands in his name who in turn executed a registered sale deed in favour of the first defendant. 3. Defendants 1 and 2 filed written statement contending as follows: The suit properties are the self acquired properties of Pappiah. The sale deed stands in his name who in turn executed a registered sale deed in favour of the first defendant. After the death of Gowrammal, the plaintiff came to the first defendants custody and the first defendant was nourishing him and she only conducted the marriage of the plaintiff, but the plaintiff left the house and is living elsewhere. The deceased Pappiah was a sick man, living separately and he did not care for defendants 1 and 2. Only the first defendant was nourishing him and giving him all the medicines. So, the deceased Pappiah, to show his love and affection, executed a Will in favour of the first defendant and transferred all the properties in her favour as they are his self-acquired properties. The mortgage was effected only to meet the medical expenses of late Pappiah. By virtue of the Will, the first defendant is the absolute owner and the plaintiff cannot question her right. The plaintiff never worked with his father and there was no joint exertion and joint income. There was no joint family property. As the properties are self-acquired properties of Pappiah, he had every right to execute the Will and by virtue of the Will, the first defendant has become the absolute owner of the suit property. So, the plaintiff is not entitled to any share in the suit property. 4. Thesuit was tried by the trial Court and it was dismissed. 5. As against that judgment and decree, the first appeal was preferred and the first appeal was also dismissed. 6. As against that concurrent finding of the Courts below, the plaintiff has preferred the second appeal. 7. The following are the substantial questions of law that were framed for determination in this second appeal: (1) Whether the Courts below erred in law in holding that the suit properties are the self-acquired properties of the appellants father when admittedly the appellant and his father were running joint family business and the suit properties were purchased out of the income derived from the joint family business when the appellant was at the age of 16 years and when the defendants utterly failed to prove that the suit properties were the self acquired properties of the appellants father. (2) Whether the Courts below erred in law in casting the burden on the appellant to prove that the suit properties are not the self-acquired properties of his father when in law it is for the defendant to prove that the suit properties are the self-acquired properties particularly when the existence of joint family, joint family business and joint family income are clearly established and proved. (3) Whether in law Ex.B-9 Will executed by the appellants father in favour of the first defendant is void and affects the rights of the appellant over the suit properties when the same was executed under suspicious circumstances in the presence of the first defendant, the sole beneficiary while the appellants father, the executant was not in a sound state of mind. 8. The suit property originally belonged to one Pappiah father of the plaintiff, the plaintiff is the son born to Pappiah through his first wife Gowrammal. After the death of Gowrammal, Pappiah married her sister Venkatammal who died issueless. After that Pappiah married the first defendant as his third wife and the second defendant is the son of the said Pappiah through the first defendant. According to the plaintiff, the suit property is joint family property which was acquired by the joint exertion of himself and his father by doing their family profession viz., barber work and the plaintiff, while he was in ten years old, was given training by his father in the barber shop work in cutting and shaving and thus, the plaintiff also contributed labour in the barber shop by assisting in the barber shop work. The plaintiff vehemently contends that because of the joint exertion and due to his contribution from his earning, the suit property was acquired by his father and so, the suit property is a joint family property and the said Pappiah also treated the suit property as joint family property belonging to himself, the plaintiff and the second defendant. 9. The said Pappiah, purchased the suit property along with his brother Chinnakuttiah on 25.8.1983. The common half share purchased by Chinnakuttiah was also purchased by the father Pappiah later under a registered sale deed dated 11.8.1955. 9. The said Pappiah, purchased the suit property along with his brother Chinnakuttiah on 25.8.1983. The common half share purchased by Chinnakuttiah was also purchased by the father Pappiah later under a registered sale deed dated 11.8.1955. The plaintiff contends that the other common half share was also purchased by the earning derived by Pappiah and the plaintiff by their joint exertion by running saloon and thus the plaintiff claim the suit property as joint family property. Defendants 1 and 2 vehemently contend that it is the self-acquired property of Pappiah and the plaintiff never contributed for the purchase of that property and Pappiah had also executed a Will in favour of the first defendant bequeathing that property in favour of the first defendant and by virtue of that Will dated 18.4.1980, the first defendant is the absolute owner of the suit property and the plaintiff cannot claim for partition and separate possession of the suit property. The plaintiff contends that the alleged Will setforth by the first defendant is a forged one and it is not a true and genuine document and his father never executed any such Will. 10. Learned counsel for the plaintiff/ appellant submitted that the plaintiff started earning by taking training under his father from the age of ten and he assisted his father and he was also doing barber shop work and contributed much for the purchase of the suit property and only from the joint exertion, the suit property was purchased and it is a joint family property. He further submitted that the alleged Will alleged to have been executed by its father is not a true and genuine one and it is surrounded by suspicious circumstances and there is also no mention as to why the sons viz., the plaintiff and the second defendant were disinherited under that Will. 11. He further submitted that the alleged Will alleged to have been executed by its father is not a true and genuine one and it is surrounded by suspicious circumstances and there is also no mention as to why the sons viz., the plaintiff and the second defendant were disinherited under that Will. 11. On the other hand, learned counsel for the defendants/ respondents submitted that the plaintiff was a small boy even at the time of acquisition of the suit property in the year 1953 and he could not have contributed anything for the purchase of the property and there is also no joint family nucleus in the family for purchase of the suit property and so, it cannot be contended that the suit property is a joint family property and it is a self-acquired property of father Pappiah and he had every right to execute the Will in favour of the first defendant and by virtue of the Will, the first defendant has become the absolute owner of the suit property. 12. Both the Courts below have found that the suit property is not joint family property and there is no evidence to show that there was a joint family status and no acceptable evidence was let in to show the age of the plaintiff at the time of acquisition of the suit property and the plaintiff was in a position to contribute for the purchase of the suit property by joint exertion. 13. The plaintiff, who has been examined as P.W.1, speaks in his evidence that from the age of ten, he is doing the barber work along with his father and his father was having saloon at Hasan and from the earning of the barber shop work, the suit property was purchased by his father and his junior paternal uncle under Ex.A-1. He further says that afterwards, the other half share of the suit property of this paternal uncle was also purchased by them through their earning. P.W.1 father went to Krishnagiri and constructed a house in the suit property by their earning and they were living together as joint family members and so, himself, his father and the second defendant each are entitled to 1/8 share and after the death of this father, himself, second defendant and the first defendant each are entitled to 4/9th, 4/9th and 1/9th shares respectively. 14. 14. Of course, no document is filed to show with regard to the age of the plaintiff that at the time of acquisition of the suit property in 1953, he was capable of earning. The counsel for the plaintiff submitted that the plaintiff was aged about 15 years at the time of acquisition of the suit property under Ex.A-1 in the year 1953 and he was doing work in the barber shop and he contributed for the acquisition of the suit property. Of course there is no documentary evidence with regard to the age of the plaintiff. But, even assuming that the plaintiff was aged about 15 years old at the time of Ex.B-1, it cannot be stated that there was much contribution by the plaintiff for the acquisition of the suit property. At the age of 15, the plaintiff would not have had such earning capacity so as to contribute for the acquisition of the suit property. He also would not have gained experience in his work for getting much earning. He would not have any previous experience and he would not have earned for a number of years also. So, even taking into consideration that the plaintiff was aged 15 years, the case of the plaintiff cannot be accepted as true. He would not have contributed much and the property would have been purchased by joint exertion. So, the oral evidence and the facts and circumstances of the case do not prove that there was joint exertion and the suit property was purchased as joint family property. Admittedly, there was no joint family nucleus to purchase the suit property so as to treat the suit property as joint family property. 15. This Court has held in Krishnamurthy, S. v. S.Venugopal and thirteen others Krishnamurthy, S. v. S.Venugopal and thirteen others Krishnamurthy, S. v. S.Venugopal and thirteen others (1996)1 L.W. 663 that, “In case of plea of joint labour or joint exertion plaintiff Will have to substantiate as to what is the nature of the contribution done by him for the family.” This Court has also held in Puthiavinayagam Pillai v. Sivasankaran Pillai (1997)1 MLJ. 199 : (1997)1 L.W. 482 that in case of acquisition of property by a member of joint family and there is a claim that it is a joint family property, the burden of proof rests on the person who asserts to that effect. 199 : (1997)1 L.W. 482 that in case of acquisition of property by a member of joint family and there is a claim that it is a joint family property, the burden of proof rests on the person who asserts to that effect. In so far as presumption in respect of joint family is concerned, the law is well settled that there is no presumption that family, because it has joint possesses joint property or any property and when in a suit for partition, a party claims that any particular item or property is joint family property, the burden of proving that it is so rests on the party asserting it. As per the catena of decisions laid down by this Court and the Apex Court, to prove that a particular property is a joint family property, the plaintiff must prove that the family possessed of some property with the income of which the suit property could have been acquired or from which presumption could be drawn that all the property possessed by the family is joint family funds, such as the proceeds of sale of ancestral property or by joint labour. 16. In the case on hand, the plaintiff claims the property as joint family property as contribution made by him as joint labour. Admittedly, the plaintiff was a minor at the time of acquisition of the suit property. Absolutely, there is evidence to show that he was sufficiently aged to earn any income. Even assuming that the plaintiff who was helping his father, might have been doing some job, he would not have any such capacity to earn such a huge amount and make contribution for the acquisition of the suit property. Of course, there are also no materials available to show that there was joint earning by the plaintiff and his father. Even though P.W.1 says that there is evidence to show that he contributed money, he says that he could not tell the names of the witnesses now. P.W.1 also says that he was brought up by his grandmother for about six or seven years. So, under the circumstances, I have no hesitation to hold that there was no joint labour and the plaintiff was not in a position to contribute for purchase of the suit property. The suit proeprty was purchased by the father. P.W.1 also says that he was brought up by his grandmother for about six or seven years. So, under the circumstances, I have no hesitation to hold that there was no joint labour and the plaintiff was not in a position to contribute for purchase of the suit property. The suit proeprty was purchased by the father. Hence, I hold that the suit property is a self-acquired property of the father and it is not a joint family property. The finding of the Courts below in this aspect is confirmed. 17. The first defendant claims the suit property by virtue of the Will dated 18.4.1980 and alleged to have been executed in her favour by Pappiah. The plaintiff vehemently contended that the father Pappiah never executed any Will and the alleged Will is not a true and genuine document. The first defendant who claims the suit property as her absolute property by virtue of the Will has to establish that the Will is a true and genuine one and she is the absolute owner of the suit property. The categorical evidence of P.W.1 is that his father has not executed any such Will and he was not physically as well as mentally healthy at the time of alleged execution of the Will. 18. The first defendant as D.W.1 speaks in her evidence that only her husband had executed the Will and he only signed in that Will and he saw the attestors attesting the Will and the attestors also saw her husband signing the Will. 19. The defendant has examined D.W.2 an attestor to the Will. His evidence is that the signature in Ex.B-9 Will is his signature and he attested that document and along with him another attestor one Tailor Anandan also attested the Will. D.W.2s evidence is that Pappiah the father of the plaintiff came and called him stating that he was going to execute a Will in favour of his wife and accordingly, the father of the plaintiff Pappiah, first defendant and second defendant all took him to the Sub Registrars Office and there the Will was written and he signed in that Will and Pappiah also signed and the witnesses witnessed that and Pappiah also witnessed the attestors attesting the document. D.W.2 further says that he attested Ex.B-9 only after it was read over to him and Pappiah wrote that Will in favour of Nallammal the first defendant. He says that they went to the Sub Registrars Office at about 10.30 a.m. and by 12.00 noon everything was over. 20. It is seen from the evidence Pappiah was having barber shop near D.W.2s shop. The evidence of D.W.2 is that only Pappiah and defendants 1 and 2 took him to the Sub Registrars Office and whereabouts of the other attestor Anandan is not known. D.W.2 one of the attestors does not know the scribe of the Will. He states that he signed in one place and Anandan signed once and immediately they left that place. D.W.2 does not know as to in respect which property that Will was written and he also does not know whether the second defendant was given any property under that Will. So, the evidence of D.W.2 is that he was taken to the Sub Registrars Office by defendants 1 and 2. The first defendant is the beneficiary and the second defendant, her son and they only had taken D.W.2 to the Sub Registrars Office. Except the interested persons viz., defendants 1 and 2, no one was present at the time of execution of the Will and they only took the attestor to the Sub Registrars Office. The evidence of D.W.2 has been given a copy of D.W.1. D.W.1s evidence is that herself, her husband and the second defendant went to the Sub Registrars Office at Krishnagiri and they did not take anybody with them and there was one Iyer present and her husband asked him to write the Will and he wrote that Will and her husband Pappiah did not write the Will. Her further evidence is that when the Will was being written, only her husband, herself and the second defendant were present and none else was present and when the contents of the Will was read over to the testator, none was present and her husbands signature was obtained in that Will and they went to the Sub Registrars Office and the Registrar obtained her husbands signature and thumb impression and then they all came out. D.W.1 has not whispered anything with regard to the presence of the attestors and also their signing in the document. D.W.1 has not whispered anything with regard to the presence of the attestors and also their signing in the document. Even though D.W.1 has spoken in her chief examination that the attestors saw her husband signing the Will, her evidence is shakened in her cross examination where she says that only herself, her husband and the second defendant went to the Sub Registrars Office and they did not take anybody else with them. So, there is clear contradiction in the evidence of D.Ws.1 and 2. This creates doubt with regard to the genuineness of the document Ex.B-9. 21. The specific evidence of D.W.1 is that they never took anybody to the Sub Registrars Office and apart from herself, her husband and the second defendant nobody else went to the Sub Registrars Office especially the attestors did not accompany them for writing that Will. This amounts to suspicious circumstances surrounding the execution of the Will. Further, the sons the plaintiff through the testators first wife and the second defendant through the testators third wife viz., the first defendant have been disinherited under the Will. There is no proper explanation for that. In Ex.B-9 also nothing is written with regard to their disinheritance. 22. When there is evidence to doubt the genuineness of the Will, it is the duty of the propounder of the Will to dispel and explain those suspicious circumstances. The Supreme Court has held in Kartar Karu and another v. Milkho and others Kartar Karu and another v. Milkho and others Kartar Karu and another v. Milkho and others (1997)2 L.W. 686 that when circumstances disclose in the evidence to doubt the genuineness of the Will, it is the duty of the propounder of the Will to dispel and explain the suspicious circumstances. In H.Venkatachala Iyengar v. B.N.Thimmajamma and others H.Venkatachala Iyengar v. B.N.Thimmajamma and others H.Venkatachala Iyengar v. B.N.Thimmajamma and others (1959)1 S.C.R. (Supp.) 426 the Apex Court has held that “The mode of proving Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Sec.63 of the Succession Act. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. Proof in either case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. If the caveator alleges undue influence, fraud or coercion the onus Will be on him to prove the same. Where are no such pleas but the circumstances give rise to such doubts, it is for the propounder to satisfy the conscience of the Court. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If the propounder takes a prominent part in the execution of the Will which confers substantial benefits on him, that itself is a suspicious circumstance attending the execution of the Will and in appreciating the evidence in such a case, the Court should proceed with an open but nevertheless vigilant and cautious mind.” In Govindan Chettiar, etc. v. Akilandam, etc. and twenty-four others Govindan Chettiar, etc. v. Akilandam, etc. and twenty-four others Govindan Chettiar, etc. v. Akilandam, etc. and twenty-four others (1997)3 L.W. 673 this Court has held that where under a registered Will, the testator bequeathing his entire asset to his son who took active part in the execution, excluding other children and registering it at Registrars Office which is far away, and where the legatee takes active part in the execution of the Will, better evidence is required regarding execution and where circumstances show that formalities are perfunctory, registration by itself Will not give a colour of genuineness. In the case on hand, the evidence discloses that the legatee has taken active part in execution of the Will and the entire asset is given to the legatee. 23. As I have already indicated, there is no proper explanation as to why the sons were excluded. It may be that the second defendant is the other son i.e., son of the testator through the first defendant. But, the plaintiff who is the son of the testator through his first wife was excluded. 23. As I have already indicated, there is no proper explanation as to why the sons were excluded. It may be that the second defendant is the other son i.e., son of the testator through the first defendant. But, the plaintiff who is the son of the testator through his first wife was excluded. This also raises doubt with regard to genuineness of the Will. P.W.1s evidence also shows that his father was not hale and healthy and was not in sound disposing state of mind at the time of execution of Ex.B-9 Will. Only the legatee the first defendant and the second defendant who are interested in getting the property took the testator to the Sub Registrars Office. Even the attestator has not accompanies them as per the evidence of D.W.1 whereas D.W.2 says that defendants 1 and 2, the testator and himself went to the Sub Registrars Office and there the Will was written. So, the clear contradiction in the evidence of D.Ws.1 and 2 proves that the Will Ex.B-9 is surrounded by suspicious circumstances and those suspicious circumstances have not been expelled by the propounder of the Will. 24. The Courts below have found that the Will is a true and genuine one. They have relied upon the evidence of D.W.2. Taking into consideration the strong circumstance that there is contradiction in the evidence of D.Ws.1 and 2 with regard to valid execution and attestation, I have no hesitation to hold that Ex.B-9 Will is not a true and genuine one. Hence, I differ from the view taken by the Courts below. There is concurrent finding of the Courts below. Even though Sec.100, C.P.C., operates as a bar to re-appreciate the evidence in second appeal. If there was failure on the part of the Courts below to consider the material document and material portion of the evidence and when the appreciation of evidence is perverse, I feel that the judgment and decree passed by the Courts below can be interfered with. 25. This Court held in Narayanaswamy v. Raman (2000)1 L.W. 853 that. “Though the findings of the two Courts below are concurrent, this Court is unable to sustain the judgment of the Courts below as they have miserably failed to consider the material documents and oral evidence. 25. This Court held in Narayanaswamy v. Raman (2000)1 L.W. 853 that. “Though the findings of the two Courts below are concurrent, this Court is unable to sustain the judgment of the Courts below as they have miserably failed to consider the material documents and oral evidence. The omission to consider the material documents and material portion of the evidence by the two Courts below is a valid ground for interference in the second appeal, even if it is against concurrent finding. Merely because the findings are concurrent, this Court is not helpless when it is demonstrated that the two Courts below have failed to advert or consider the material portion of the evidence or their appreciation of evidence is perverse of the findings recorded by the two Courts below are demonstrably incorrect on the face of the documentary evidence produced before the two Courts below. This Court is considering this appeal, being conscious of the pronouncement of the Apex Court as to the Courts power under Sec.100, C.P.C.” In Ishwar Dass Jain v. Sohan Lal A.I.R. 2000 S.C. 426 the Apex Court has held that in second appeal, interference is permissible when material or relevant evidence is not considered or where finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence and in either of the above situations, a substantial question of law can arise. In this decision, the Supreme Court observed that: “Now under Sec.100, C.P.C., after the 1976 amendment, it is essential for the High Court to formulate substantial question of law and it is not permissible to reverse the judgment of the First Appellate Court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered, which if considered would have led to an opposite conclusion. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered, which if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Sec.100, C.P.C. after the 1976 amendment… The Court (the first appellate Court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises as of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding… Where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.” 26. On a perusal of the entire evidence and documents, it is seen that there is no proper appreciation of evidence by the Courts below and even though the evidence of D.Ws.1 and 2 is contradictory, the Courts below have arrived at a perverse finding holding that the Will is a true and genuine document and so, I hold that the finding of the Courts below is not justifiable when valid execution and attestation of the Will has not been proved. The Courts below have relied upon the contradictory evidence and found that the Will is a genuine one. 27. The facts and circumstances of the case warrant interference by this Court. This Court has necessarily to interfere with the findings arrived at by the Courts below. For the foregoing reasons, I hold that Ex.B-9 Will is not a true and genuine document and it was executed under suspicious circumstances in the presence of the first defendant the sole beneficiary. Hence, I hold that the plaintiff and defendants 1 and 2 are entitled to partition and separate possession of the suit property and they each are entitled to get his share, the suit property being the self-acquired property of the father. 28. In the result, the appeal is partly allowed. The judgment and decree of the Courts below are set aside. 28. In the result, the appeal is partly allowed. The judgment and decree of the Courts below are set aside. The suit is decreed for partition and separate possession of the plaintiffs -- share in the suit property in view of my finding that the suit property is a self-acquired property. No costs.