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2011 DIGILAW 3946 (MAD)

C. P. Sreerangan v. C. P. Ponnusamy

2011-09-13

R.S.RAMANATHAN

body2011
JUDGMENT :- Common Judgment 1. The defendant is the appellant herein. The respondent/plaintiff filed the suit for recovery of possession of the suit property. 2. The case of the respondent/plaintiff was that the suit property originally belonged to one Mr.Chinna Poyan and he was not heard for so many years and his wife, Mrs.Nachammal, died on 23.1.1993, leaving behind a registered will dated 30.5.1980. The appellant/defendant and the respondent/plaintiff are the children of the brother of the aforesaid Mr.Chinna Poyan and under a registered Will, the first item of property was given to the appellant/defendant to be enjoyed by him, without any power of alienation and he has to give 5 podhis of paddy every year to the respondent/plaintiff and the respondent/plaintiff has to give a sum of Rs.1,000/- to the Executive Officer of Palani Dhandayudhapani Temple and if, for any reason, the appellant/defendant failed to give five podhis of paddy to the respondent/plaintiff, the respondent/plaintiff is entitled to take possession of the first item of property and cultivate the same and has to pay a sum of Rs.1,000/- to the Temple as aforesaid. As the appellant/defendant failed to give five podhis of paddy and also claimed ownership over the suit property, the respondent/plaintiff filed the suit for recovery of possession on the basis of the Will. 3. The appellant/defendant contested the suit stating that no Will was executed by Mrs.Nachammal, the wife of Mr.Chinna Poyan and even during the lifetime of Mr.Chinna Poyan, the properties were orally settled by him, in favour of the appellant/defendant and the respondent/plaintiff and the suit property was given to the appellant/defendant, towards his share and he was paying maintenance to the wife of Chinna Poyan. Therefore, there was no necessity for him to pay any amount to the respondent/plaintiff and hence, the respondent/plaintiff is not entitled to the relief prayed for. The appellant/defendant also disputed the Will, alleged to have been executed by the said Nachammal. 4. The trial Court held that the Will was proved by the respondent/plaintiff and as per the Will, the respondent/plaintiff ought to have prayed for the relief of declaration of his title to the suit property and in the absence of a prayer for declaration, the suit for recovery of possession is not maintainable and dismissed the suit. 4. The trial Court held that the Will was proved by the respondent/plaintiff and as per the Will, the respondent/plaintiff ought to have prayed for the relief of declaration of his title to the suit property and in the absence of a prayer for declaration, the suit for recovery of possession is not maintainable and dismissed the suit. Aggrieved by the same, the respondent/plaintiff filed an appeal before the First Appellate Court and the First Appellate Court reversed the judgment and decree of the trial Court and decreed the suit as prayed for. Hence, the second appeal. 5. At the time of admission of the Second Appeal, the following substantial question of law were framed:- i) Whether the suit for mere delivery of possession without prayer for declaration is maintainable, especially, when the title of the respondent/plaintiff was seriously disputed? ii) Whether the Will in question is proved in the manner as provided under Clause 3 ( c) of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, 1872? iii) Whether the plaintiff has duly discharged the burden cast upon him to prove the execution, attestation of the Will and its validity, by disproving all the suspicious circumstances surrounding the same? 6. The learned counsel appearing for the appellant submitted that the Lower Appellate Court as well as the Trial Court erred in holding that the Will was proved by the respondent/plaintiff. According to the learned counsel for the appellant, no attesting witnesses were examined and no proof was adduced about the death of those attesting witnesses and therefore, the Will was not proved by the respondent/plaintiff in the manner known to law. 7. The learned counsel for the appellant further submitted that having regard to the terms of the Will, the respondent/plaintiff is not entitled to the recovery of possession, without a prayer for declaration and under the Will, he is entitled to possess the property, only if the appellant/defendant fails to give five poddhis of paddy every year to the respondent/plaintiff and therefore, in the absence of a prayer for declaration, the suit for recovery of possession is not maintainable. 8. I am unable to accept the contention of the learned counsel for the appellant. Now doubt, the respondent/plaintiff did not examine the attesting witness to prove the Will. 8. I am unable to accept the contention of the learned counsel for the appellant. Now doubt, the respondent/plaintiff did not examine the attesting witness to prove the Will. Nevertheless, it has been rightly observed by the trial Judge that the evidence of P.W.3, one of the witnesses, who identified the Testator before the Sub Registrar had given evidence that he was present at the time, when the Will was presented by Nachammal and he also saw the attesting witnesses signing the document in the presence of Nachammal and he also spoke about the testamentary capacity of Nachammal. P.W.4-the Scribe also given evidence that the said Nachammal gave instructions for writing the Will and that was attested by two attesting witnesses and P.W.3 and one Venkatesa Gounder, identified Nachammal before the Sub Registrar. P.W.3, one of the identifying witnesses also deposed that the witnesses, who attested the Will were not alive. 9. Considering all these aspects, the trial Court has rightly held that the respondent/plaintiff proved the due execution of the Will by examining one of the identifying witnesses and the Scribe, as the attesting witnesses were dead. The appellant also filed a cross appeal against the findings of the Trial Court that the Will was duly proved by the respondent and the First Appellate Court allowed the appeal filed by the respondent and dismissed the cross appeal filed by the appellant/defendant. Hence, the substantial questions of law 2 and 3 are answered against the appellant/defendant. 10. A reading of Ex.A2, would make it clear that the suit property was given to the appellant/defendant to be enjoyed by him, without any power of alienation and burden was cast upon him to give five podhis of paddy every year to the respondent/plaintiff and the respondent/plaintiff was further burdened to pay Rs.1,000/- to the Temple from and out of the sale proceeds of five podhis of paddy. It was further provided in the Will that if the appellant/defendant failed to pay five podhis of paddy every year to the respondent/plaintiff, the respondent/plaintiff is entitled to cultivate the property and pay Rs.1,000/- to the Temple. Therefore, as per the Will, the respondent/plaintiff is entitled to enter into the property to raise the crops for making payment to the Temple. 11. Therefore, as per the Will, the respondent/plaintiff is entitled to enter into the property to raise the crops for making payment to the Temple. 11. It is not the case of the appellant/defendant that he was paying five podhis of paddy every year to the respondent/plaintiff or that the respondent/plaintiff, without issuance of receipts, is demanding possession. The case of the appellant/defendant was that no Will was executed by Nachammal and the suit property was allotted to him under an oral settlement by his uncle Chinna Poyan. 12. Both the Courts below disbelieved the case of the appellant/defendant and have held that the Will was executed by Nachammal and under the Will, property was given to the appellant/defendant with a specific condition. As the appellant/defendant failed to pay five podhis of paddy to the respondent/plaintiff, as per the terms of the Will, the respondent/plaintiff is entitled to take possession of the property and for that purpose, he filed the suit for recovery of possession and therefore, there is no need for him to file the suit for the relief of declaration and this was rightly considered by the Lower Appellate Court and the Lower Appellate Court rightly held that the suit as framed is maintainable. 13. I am in complete agreement with the findings of the Lower Appellate Court and that the Trial Court is not right in holding that the suit for recovery of possession, without a prayer for declaration is not maintainable. Hence, the first substantial question of law is also answered against the appellant/defendant. 14. In the result, the judgment and decree of the First Appellate Court is confirmed and that of the Trial Court, is set aside and the Second Appeal is dismissed. In the circumstances of the case, there shall be no order as to costs.