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2012 DIGILAW 1376 (MAD)

Vimala Kumari v. Ravichandran @ Chandirappa

2012-03-15

T.RAJA

body2012
Judgment :- 1. The present second appeal has been brought by the plaintiff, who has filed a suit seeking a prayer ---- i) For dividing the suit properties described in the schedule into three equal shares by meets and bounds with reference to good and bad soil and allot one such share to the plaintiff and put her in separate possession of the same; ii) Awarding mesne profit in accordance with Order 20 Rule 12 of CPC in case of dispossession unlawfully made by the second defendant; iii) Granting permanent injunction restraining the second defendant from dispossessing the plaintiff from the joint possession and enjoyment of the suit properties along with them; iv) Granting permanent injunction restraining the second defendant from alienating the suit properties to the third parties. 2. This Court, at the time of entertaining the second appeal, has framed the following substantial questions of law;- "i. Whether the Court does always lean in favour of legitimate relationships and whether the finding of the lower appelalte Court to the contrary is not perverse and unjustified? ii. Whether the finding of the lower appellate Court that the Will is bad for active participation of the plaintiff is right and proper?" 3. It is seen from the plaint that the suit properties are originally belonged to one Venkataramaiya, who is the father of the plaintiff and the defendants 1 and 2 . The defendants 1 and 2 were born to the first wife of Venkataramaiya and the plaintiff was born to the second wife of Venkataramaiya. Since the Venkataramaiya and the defendants treated, possessed and enjoyed the suit properties as joint family properties, it was pleaded that, the defendants and Venkataramaiya are entitled to 1/3rd share each. Before the death of Venkataramaiya, there was some ill-feelings between Venkataramaiya and defendants. As a result of distrained relationship, the said Venkataramaiya was looked after by his daughter, namely, the plaintiff. Therefore, out of love and affection, the Venkataramaiya, before his death, had executed a registered Will, dated 22.03.1980, in favour of the plaintiff with regard to his 1/3rd share in the suit property. While executing the said Will, Ex.A1, dated 22.03.1980, Venkataramaiya was in sound mind and good health. Resultantly, after his death on 20.09.1980, the Will dated 22.03.1980, has come into force, and therefore, the plaintiff is entitled to 1/3rd share in the suit properties. While executing the said Will, Ex.A1, dated 22.03.1980, Venkataramaiya was in sound mind and good health. Resultantly, after his death on 20.09.1980, the Will dated 22.03.1980, has come into force, and therefore, the plaintiff is entitled to 1/3rd share in the suit properties. After the death of the father, the plaintiff and the defendants are in possession and enjoyment of the suit properties ---'A' and 'B' scheduled properties --- and as there was no partition between the plaintiff and the defendants, the first defendant, being elder brother, became managing Kartha and was managing the properties. This is also proved on the basis of joint patta issued in the year 1985 under the UDR scheme to the plaintiff and the defendants under patta No.1315. Even after the death of their father in the year 1980, the plaintiff and the defendants acquired 'B' schedule property from out of the income derived from the joint family property, which is mentioned in 'A' schedule. From the year 1982 onwards, as the plaintiff and the defendants are in continuous, uninterrupted possession and enjoyment of the same, they are entitled to have equal share of the suit properties. 4. A written statement was filed by the second defendant, denying the execution of the Will, dated 22.03.1980, by taking a plea that the alleged Will has been fabricated to suit the plaintiff's prayer in the suit. It was also pleaded before the trial Court that the plaintiff, while taking advantage of the illness suffered by the Late Venkataramaiya, in the tail end of his life, by exercising undue influence over Venkataramaiya, who was 80 years at that relevant point of time, had somehow created the Will. Therefore, the suit laid by the plaintiff for 1/3rd share is not maintainable. 5. It is also to be borne in mind that the first defendant was not alive at the time of filing of suit. Therefore, the third defendant, wife of first defendant, was impleaded as one of the necessary parties. Therefore, the suit laid by the plaintiff for 1/3rd share is not maintainable. 5. It is also to be borne in mind that the first defendant was not alive at the time of filing of suit. Therefore, the third defendant, wife of first defendant, was impleaded as one of the necessary parties. The trial Court, on considering the facts on the basis of Ex.A6, a sale deed executed by the plaintiff, defendants 1 and 2, reached a conclusion that the plaintiff is entitled to have 1/3rd share from 'A' and 'B' scheduled properties, by holding that when the plaintiff, defendants 1 and 2 have jointly executed the sale deed Ex.A6, seeking the family properties of Late Venkataramaiya, it is not open to the second defendant to take a different stand against the execution of the Will, Ex.A1, that the plaintiff was not the daughter of the Late Venkataramaiya, hence, the will was nonest in the eye of law. 6. It is also brought to the notice of this Court that when the first defendant has accepted the case of the plaintiff for allowing 1/3rd share of 'A' and 'B' scheduled properties, the trial Court was right in decreeing the suit for partition and though the trial Court has accepted the execution of Will, Ex.A1, on appeal filed by the second defendant, learned first appellate Court has reversed the judgment and decree passed by the learned trial Court, by giving an interesting finding in favour of the second defendant, stating that the plaintiff, daughter of Venkataramaiya, born from second wife, is a lawful daughter of Venkataramaiya, but, however, disbelieving the genuineness of the Will given a finding that the Will was not a genuine one. In fact, the trial Court before accepting the Will has considered the evidence of P.W.3, who spoke that he has written the Will and in regard to the evidence of P.W.2, though during the examination of P.W.2 when P.W.2, has clearly deposed that the deceased Venkataramaiya has executed the Will Ex.A.1 by signing the same in the registered office, his further evidence that he was also in good health and mental condition cannot be brushed aside by the learned first appellate Court. As per Section 63 of the Indian Succession Act, the Will shall be attested by two or more witnesses each of whom has to see the attestor signing or affixing his mark in the Will. Accordingly, when P.Ws.2 and 3 have deposed to prove the execution of the Will that P.W.3 has written the will and thereafter, when P.W.2 also has spoken about the execution of the will by late Venkataramaiya by putting his signature before the Sub-Registrar in the Sub-Registrar Office, holding that the execution of Ex.A1 is not in accordance with section 63 of the Indian Succession Act, is not in order. In this context, it is relevant to rely upon the judgment of the Apex Court in HERO VINOTH V. SESHAMMAL ( 2006 (5) SCC 545 ), wherein the Apex Court has held that if the Courts below have ignored the material evidence or acted on no evidence, the High Court sitting under Section 100 CPC should interfere with such finding. Further, the learned first appellate Court being the last Court of appeal on facts, it is the duty of the learned first appellant Court to go into all the questions raised in the appeal and give a clear finding while reversing the judgment of the trial court. In the present case, when the defendants 1 and 2 who were parties to the sale deed Ex.A.6 have admitted the status of the plaintiff as daughter of their late father Venkataramaiya, their denial that the Will could not have been executed since the plaintiff was not lawful daughter, is absolutely unsustainable. This significant aspect militates against the case of the appellant. As this vital aspect has been completely lost sight by the learned first appellate Court, the first substantial question of law is answered in favour of the appellant. 7. In Ex.A6, sale deed, it is seen that the defendants 1 and 2 along with the plaintiff have sold a property to one R.Krishnan. Therefore, from this evidence, it is clear that the defendants 1 and 2 have accepted the status of the plaintiff as daughter of the deceased Venkataramaiya, hence, the second defendant, son of Venkataramaiya, who was born through the first wife, having accepted that the plaintiff is the daughter of Venkataramaiya, he cannot turnaround and say that she is not the daughter of Venkataramaiya, so as to deny the 1/3rd share. When there is overwhelming document admitting the status of the plaintiff as a lawful daughter of Venkataramaiya, the second defendant cannot approbate and reprobate to achieve what is not legally permissible. 8. Further, the argument of the learned counsel for the respondents is that, one of the daughters of Venkataramaiya, namely, Susila, was not added as one of the necessary parties, does not carry any merit, the reason being that, admittedly, on the date of filing of the suit, the said Susila was not alive. Again, it was not the case of the second defendant, either before the learned trial Court or before this Court, that the said Susila had left behind any legal heirs. When there was no specific plea made in the written statement or before the trial Court, during the course of enquiry, it is too late for the counsel appearing for the second defendant to raise such a new plea before this Court. 9. In that view of the matter, this Court, finding that the learned first appellate Court has committed serious material irregularity in reversing the judgment and decree passed by the learned trial Court, is bound to interfere with the same. Accordingly, by setting aside the judgment and decree passed by the learned first appellate Court, the second Appeal is allowed, by answering substantial questions of law against the respondents. No Costs.