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2014 DIGILAW 1063 (MAD)

K. S. Savarinathan v. Seethalakshmi

2014-06-01

PUSHPA SATHYANARAYANA

body2014
Judgment : 1. This Second Appeal is filed against the judgment and decree dated 22/8/2013 in A.S.No.92 of 2012 on the file of the I Additional District Judge (PCR), Tiruchirapalli reversing the judgment and decree dated 30/7/2010 made in O.S.No.224 of 2004 on the file of the I Additional Subordinate Judge, Tiruchirapalli. 2. The defendant is the appellant in a suit for declaration of title and for recovery of possession. 3. The case of the plaintiff is that the suit property originally belonged to one Srinivasa Rao, who had purchased the properties by virtue of a sale deed dated 20/3/1940. He died intestate leaving behind four children. One Rajarao and Krishnammal were born through his first wife and Seethalakshmi the plaintiff and Rukmani were born through the second wife. Of the four, Rajarao and Krishnammal died intestate without any heirs. Rukmaniammal gradually lost her eye sight and at one point, she completely lost her vision. She remained a spinster. Rajarao had dealt with a portion of the properties left by his father by selling the same on 11/8/1980. The defendant who is a stranger to the family was a permissive occupant under Rukmaniammal and he was in possession of a portion of the property. Rukmaniammal died on 29/11/2001. After the death of Rukmaniammal, the defendant was asked to vacate the suit property but he refused. A notice was issued on 26/6/2002 for which the defendant also replied on 3/7/2002. Hence the suit for declaration and recovery of possession. 4. The suit was contested by the defendant on various grounds. The defendant admitted that Rukmaniammal was blind. He further contended that he was the tenant under Rukmaniammal. According to the defendant, Rukmaniammal had borrowed money on several occasions, and this defendant used to help her monetarily for paying the house tax, etc., on her behalf. The defendant further contended that the suit property was retained by Rajarao for the welfare of his wife who is also named Rukmaniammal and for his sister Rukmaniammal. The said Rajarao also executed a Will dated 11/8/1980 bequeathing the suit property in favour of his wife and sister. The Will also had a clear recital that whoever was taking care of his blind sister, would be entitled to the suit property, after the life time of his wife and sister. 5. The said Rajarao also executed a Will dated 11/8/1980 bequeathing the suit property in favour of his wife and sister. The Will also had a clear recital that whoever was taking care of his blind sister, would be entitled to the suit property, after the life time of his wife and sister. 5. The defendant further claimed that the plaintiff never took care of her blind sister during her life time and it was only this defendant who took care of her day-to-day necessities by providing her food and clothing. For the borrowals of money from the defendant, the Rukmaniammal had also executed a simple mortgage. According to the defendant, while the said Rukmaniammal was in sound disposing state of mind on 26/11/2001, had executed a Will in favour of this defendant. The said Rukmaniammal died on 29/11/2001 after which the Will came into force. Therefore, the defendant claimed absolute title over the suit property by virtue of the Will executed by Rukmaniammal and contended that the plaintiff had no right over the suit property. 6. On the side of the plaintiff, Exs.A.1 to A.9 had been marked and P.Ws.1 to 4 had been examined and on the side of the defendant, Exs.B.1 to B.43 had been marked and D.Ws.1 to 3 had been examined. 7. After elaborate trial and after considering all the facts and circumstances the learned Additional Sub-Judge, Tiruchirapalli dismissed the suit holding that the Will under Ex.A.40 dated 26/11/2001 was true. On an appeal by the plaintiff, in A.S.No.92 of 2012 on the file of I Additional District Judge, Tiruchirapallai the appeal was allowed and the suit was decreed. Feeling aggrieved, the defendant has filed the above appeal. 8. At the time of admission, the following substantial questions of law were formulated for consideration: a. Whether on account of casting burden wrongly, the findings of the First Appellate Court is vitiated? b. Whether the findings of the First Appellate Court with regard to the Will under Ex.B.1 is sustainable in law when the respondent/plaintiff admitted the same? c. Whether the findings of the First Appellate Court with regard to Ex.B.40 Will are sustainable in law when the appellant/defendant has produced evidence for due execution of the same? b. Whether the findings of the First Appellate Court with regard to the Will under Ex.B.1 is sustainable in law when the respondent/plaintiff admitted the same? c. Whether the findings of the First Appellate Court with regard to Ex.B.40 Will are sustainable in law when the appellant/defendant has produced evidence for due execution of the same? d. Whether the invocation of Section 30 of the Hindu Succession Act by the First Appellate Court to non-suit the appellant/defendant is legally sustainable when especially Ex.A.2 sale deed dated 11/8/1980 and Ex.B.1 Will dated 11/8/1980 executed by Raja Rao are duly admitted and not challenged by the respondent/plaintiff? e. Whether Section 65 of the Limitation Act is properly considered by the First Appellate Court while holding that the suit filed by the respondent/plaintiff is not barred by limitation when especially the respondent/plaintiff admits that she is out of possession of the suit property since 1963? f. Whether under law attestors are required to prove cogently the time, date and place of the execution of the Will apart from proving its due attestation? g. Whether the appellant/defendant is not repelled Ex.B.40 Will shrouded by suspicious circumstances? h. Whether in the absence of pleading by the respondent/plaintiff that the thumb impression of the executant in Ex.B.40 is not that of her the respondent/plaintiff can succeed? i. Whether the First Appellate Court has properly appreciated the testimony of P.W.1, D.W.1, D.W.2 and D.W.3 and gth documentary evidences namely, Ex.A.2, B.1 and B.40 in the manner known to law. j. Whether extraneous circumstances can be applied by the First Appellate Court in the absence of pleading as to the nature of the suit property? 9. Heard Mr.K.S.Shankar Murali for the appellant and Mr.K.Prabhakar for the respondent. 10. The entire case revolves on Ex.B.40 dated 26/11/2001 which is the Will alleged to have been executed by Rukmaniammal is true and genuine. If Ex.B.40 is upheld, then the defendant succeeds. If the defendant fails to prove the execution of Ex.B.40, the plaintiff gets it by natural inheritance being the only surviving heir of the deceased Rukmaniammal. In the process of proving the Will, D.W.2 and 3, who were the attesting witnesses of Ex.B.40 were examined. D.W.2 who is one of the attesting witness has stated “LANGUAGE” 12. D.W.3 who is the another witness has stated that “LANGUAGE” 13. In the process of proving the Will, D.W.2 and 3, who were the attesting witnesses of Ex.B.40 were examined. D.W.2 who is one of the attesting witness has stated “LANGUAGE” 12. D.W.3 who is the another witness has stated that “LANGUAGE” 13. From the evidence of the above said attesting witnesses viz., D.Ws.2 and 3, it can be seen that even the place of execution of the Will is not proved as D.W.2 has stated that it was prepared in the Advocate's residence and the other witnesses had stated that it was partly prepared in the testatrix house and partly in the Advocate's office. The above said evidence is contradictory to each other and leads to a suspicious circumstances. Their evidences are not credit worthy. 14. D.W.2 J.Manoharan has stated that the alleged Will was written by the Advocate as dictated by the testatrix in his office. Whereas, D.W.3 K.Raju who is another attestor has stated that the said Will was written by Chellathurai, who is a document writer. Above all, the defendant who was examined himself as D.W.1 has deposed that the Will was executed at the residence of Rukmaniammal. He had further deposed that by that time he went to her residence, the entire Will was completed. However, D.W.1 has stated subsequently that the Will was executed at the Office of the Advocate Mr.Selvaraj, Trichy. The reading of the depositions of D.W.1, 2 and 3 one can easily make out they are contradictory and destructive to the case of the defendant. The Advocate Office where the Will is said to have been executed is at least 10 kms away from the residence of the testatrix whereas the registration office is only half a kilometer from the testatrix residence. The testatrix died three days after the alleged Will was executed. Admittedly, the testatrix was suffering from jaundice and was not mobile and not in a sound and disposing state of mind. While so, there is no explanation coming forth from the defendant as to why the testatrix was allowed to travel to the Advocate's residence instead of going to the Registrar's office which is nearer. If the Will is executed at the Registrar's office, the same could have been registered. Though according to the defendant, the testatrix had taken the efforts to go to the Advocate's office, which is far from her residence, the same has not been registered. If the Will is executed at the Registrar's office, the same could have been registered. Though according to the defendant, the testatrix had taken the efforts to go to the Advocate's office, which is far from her residence, the same has not been registered. No doubt, a Will does not require registration. However, in this case, the defendant being a stranger and belonging to a different religion, the bequest being unnatural raises suspicion. Therefore, it is the bounden duty of the defendant who has taken active part in the execution of a Will as a propounder has to establish the execution of the same. “LANGUAGE” 15. From the reading of the above Will, it can be easily inferred pen had not accompanied the mind. The said Rukmaniammal admittedly is not an independent woman having knowledge about the nuances of life. The contents of the Will certainly sows the seed of suspicion on the genuineness of Ex.B.40. If the testatrix wanted to Will away the property in exclusion of the plaintiff who is her own biological sister then, Ex.B.40 would have a mention about her. When an unnatural bequest is made certainly the testator/testatrix Will give the reason for excluding the close relatives. The non-mention of the name of the plaintiff in the Will also raises suspicion. The testatrix also had died three days after the execution of the alleged Will and the testatrix also said to have died of jaundice. While so, the burden is on the defendant the propounder to establish that she was in sound and disposing state of mind. 16. Admittedly, the said Rukmaniammal was totally blind and was also in the death bed, the burden is on the defendant to establish that the Will was executed by the testatrix in a sound state of mind. It is a well settled proposition of law that mode of proving a Will does not differ from proving any other document except as to the special requirement of attestation prescribed under Section 63 of the Indian Succession Act. The onus to prove the Will is on the propounder and in the presence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity of the testatrix as required by law is large on the defendant/propounder to explain them to the satisfaction of the Court before accepting the Will as genuine. 17. The onus to prove the Will is on the propounder and in the presence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity of the testatrix as required by law is large on the defendant/propounder to explain them to the satisfaction of the Court before accepting the Will as genuine. 17. No doubt, it cannot be mathematically precise and certain but it should only be of satisfaction to any prudent mind. If the plaintiff who is contesting the Will alleges undue influence fraud or coercion then the onus will be on her to prove the same. Whereas in this case, the plaintiff has only pleaded that the Will is fabricated, concocted and rank forgery and is clouded with suspicious circumstances and therefore, it cannot clothe the defendant with any right title or interest in or over any portion of the suit property. 18. The learned counsel for the appellant placed his reliance on Dr. SHANTHA Vs. SHARADA reported in {2003 (4) CTC – 470} to convince the Court that minor discrepancy with regard to place where the Will was executed does not affect the genuineness of the Will. In para 11 of the judgment, it is stated as follows:- “Now, coming to the last contention of the learned counsel that there is a discrepancy between the statement made by P.W.3 in the affidavit and the evidence given by him in Court as to the place where the Will was executed, we cannot but say that the discrepancy is not so vital as to affect the genuineness of the Will. It is, no doubt, true that in the affidavit, P.W.3 has stated that the Will was executed in the house and in Court, he has stated that it was executed at the bank, where he was employed, in the presence of Pitchai. We have perused the affidavit and it shows that it is nothing but a copy of Form 56 of the Original Side Rules. Para 2 of the said Form is on the following terms:- “2. That on the .... day of ..... I was present together with .... at the house of and we did then and there see the said deceased set and subscribe his name at foot of the testamentary paper in the .... language and character hereunto annexed and marked with the letter .... That on the .... day of ..... I was present together with .... at the house of and we did then and there see the said deceased set and subscribe his name at foot of the testamentary paper in the .... language and character hereunto annexed and marked with the letter .... and declare and publish the same as and for his last Will and testament.” When we compare this with the affidavit of P.W.3, the attesting witnesses, it could be seen that the blanks in the Form have been simply filled and filled in Court like the date, the month, the name of the other attesting witness, the language and the capital word 'A'. This could be due to inadvertance at the time of filing of the petition. In this background, when we consider the evidence of P.W.3, it is clear that the document has been executed at the bank in his cabin. He has specifically stated in chief examination that Sundaramurthy signed the document, Ex.P.1, in his presence and in the presence of Pitchai and that Sundaramurthy requested them to attest the document. He has also stated that he has affixed the office seal on Ex.P.1. A perusal of Ex.P.1 also shows that it contains the office seal of the bank, relevant date or otherwise, the seal of the bank could not have been affixed on that, date, more so, when PPK Gopalan Nambiar V. PPK Balakrishnan Nambiar and others, A.I.R 1995 SC 1852 the said documents as registered on the very same day.” 19. In the above case, it is the Form 56 of Original Side Rules that was filed and the Honourable Division Bench had held that it could be due to inadvertance. But in the case on hand, the witnesses have deposed which is expected to be only truth and nothing but the truth. The same cannot be brushed aside lightly. 20. The appellant counsel also relied on SIVASAMY AND OTHERS Vs. POOMALAI AND OTHERS reported in {2008 (3) TNCJ 355 (Mad) (MB)}, wherein in paragraph 17, it has been held as follows:- “.... The suspicious features in the Will are the fact that the testator did not execute the Will in his place of residence. Of course, there is no presumption that merely because a Will is executed far away from the residence, it must be false. The suspicious features in the Will are the fact that the testator did not execute the Will in his place of residence. Of course, there is no presumption that merely because a Will is executed far away from the residence, it must be false. When a Will is executed and the normal course of inheritance is deviated from, the testator may naturally want to maintain some secrecy and, therefore, execute the Will away from his residence. But we have to look at the cumulative effect of the various suspicion features referred to above.” 21. As held in the above case, it is only the cumulative effect of the various suspicious factors that would decide the genuineness of the Will. Therefore, the above decision will not come to the rescue of the defendant. 22. In the light of the settled position of law, whether the Will under consideration is duly executed and the propounders of the Will had dis-spelled the suspicious circumstances surrounding the Will. Although the trial Court had recorded a finding of fact that the Will had been duly executed and dismissed the suit, the lower Appellate Court reversed the same, based on the principle laid in GURDIAL KAUR AND OTEHRS Vs. KARTAR KAUR AND OTHERS reported in { 1998 (4) SCC 384 }, wherein the Supreme Court held that wherever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance. The defendant propounder at least would have examined the Lawyer who wrote the Will or the scribe alleged to have written the Will. Therefore, in view of the above discussions, the Will Ex.B.40 is not proved in a manner known to law and the defendant as propounder of the same failed to dispel the suspicious circumstance surrounding the execution of the Will. 23. The next aspect that has to be considered is whether the testatrix Rukmini Ammal had right over the property to make the bequest. It is contended by the counsel for the respondent/plaintiff that admittedly, the suit property was purchased by Srinivasa Rao her father under Ex.A.1 in the year 1940. Therefore, as rightly found by the lower Appellate Court also, the suit property is the self acquired property of Srinivasa Rao. It is nobody's case that the suit property is an ancestral one. It is contended by the counsel for the respondent/plaintiff that admittedly, the suit property was purchased by Srinivasa Rao her father under Ex.A.1 in the year 1940. Therefore, as rightly found by the lower Appellate Court also, the suit property is the self acquired property of Srinivasa Rao. It is nobody's case that the suit property is an ancestral one. Therefore, on the death of Srinivasa Rao, the property would devolve on all his children equally i.e., all four children. Admittedly, the property is self acquired one of Srinivasa Rao and he is presumed to be alive on the date of coming to force of the Hindu Succession Act. Therefore, the plaintiff is entitled to her share of the property in her own right. Therefore, by virtue of Section 8 of the Hindu Succession Act, the plaintiff is entitled to 1/4th share of her father's property. Admittedly, the brother of the plaintiff Raja Rao had dealt with a portion of the property by selling the same. However, the said sale under Ex.A.2 and the Will under Ex.A.1 could only be to the portion for which he is entitled to under Section 8 of the Hindu Succession Act. In the absence of any contra evidence coming forth from the defendant that the suit property is only joint family property and that the plaintiff did not have any right in the same, the claim of the plaintiff is convincing and acceptable. 24. So far as the question of limitation is concerned, the appellant/defendant contended that the plaintiff was out of possession of the suit property from 1963. Merely because the plaintiff had been living in Pondicherry after her marriage, it will not amount to ouster. Though the defendant being a stranger cannot take the plea of ouster, there is no plea of ouster in the written statement either. The suit has been laid within a period of one year from the date of death of Rukmani Ammal. Therefore, the suit is filed within time. The defendant having failed to establish the Will Ex.B.40 cannot succeed in the appeal as the title is claimed only under the same. The questions of law are answered in negative. 25. In fine, the Second Appeal is dismissed, confirming the judgment and decree passed in A.S.No.92 of 2012 on the file of the I Additional District Judge (PCR), Tiruchirapalli. No costs.